PA: Search warrant may be used as investigative tool to gather evidence and move investigation along

There was ample probable cause of the issuance of the search warrant in this murder case, and the appellate court (2007 PA Super 181, 928 A.2d 1054 (2007)) erred in holding otherwise. Moreover, a search warrant may be used as an investigative tool. Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649 (2010), cert. denied, 131 S. Ct. 110, 178 L. Ed. 2d 32 (U.S. 2010):

In coming to our conclusions, we must reject Jones’s argument that a warrant can never be used as an investigative tool. Jones cites case law that purportedly supports his argument. Appellee’s Brief at 5-6. However, such case law is readily distinguishable and relates to instances where the police only have a mere suspicion that a crime has been committed and/or where the police are unable to describe the items to be searched for “as is reasonably possible.” See In re Casale, 512 Pa. 548, 517 A.2d 1260, 1263 (Pa. 1986) (stating that a search warrant “is not available as a general investigatory tool to be used in place of a grand jury.”) (emphasis added); Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796, 801 (Pa. 1986) (stating that “mere suspicions” of a possible crime “do not constitute probable cause to support a search warrant”); Commonwealth v. Bagley, 408 Pa. Super. 188, 596 A.2d 811, 815 (Pa.Super. 1991) (quoting Casale, and determining that the police could not execute a warrant to search the home of the decedent and her surviving husband for unspecified evidence that might shed light on her death in order to determine whether a crime had been committed). Here, there was no question that a crime had been committed and that the police could, with fair probability, expect to find evidence related to that crime in what was reasonably believed to be the dead victim’s dormitory room, including evidence concerning the positive identification of the victim and any persons with whom the victim may have had recent contact or with whom he may have been involved.

Pursuant to our Rules of Criminal Procedure, a search warrant may be used as an investigative tool, under the appropriate circumstances. Rules 200-211 govern the issuance of search warrants. Relevantly, Rule 201 defines the purposes of a search warrant as follows:

Rule 201. Purpose of Warrant
A search warrant may be issued to search for and to seize:
(1) contraband, the fruits of a crime, or things otherwise criminally possessed; or
(2) property that is or has been used as the means of committing a criminal offense; or
(3) property that constitutes evidence of the commission of a criminal offense.

Pa.R.Crim.P. 201.

Notable is the third enumerated purpose: to search for “property that constitutes evidence of the commission of a criminal offense.” Pa.R.Crim.P. 201(3). The “comment” to Rule 201(3) references Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). In Warden, the United States Supreme Court reversed case law holding that only contraband and the fruits of a crime can be seized pursuant to the Fourth Amendment, but not “mere evidence.” The Court determined that nothing in the Fourth Amendment supports a distinction between contraband and “mere evidence,” concluding that evidence of a crime is clearly subject to search and seizure under the Fourth Amendment. The Court held that it is reasonable under the Fourth Amendment to conduct otherwise permissible searches for purpose of obtaining evidence that would aid in apprehending and convicting criminals. Id. at 306-07; see also Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89, 90 (Pa. 1972) (holding that a search and seizure may be for “purely evidentiary items” when there is a “nexus between the items to be seized and the suspected crime,” citing and quoting Warden, supra at 307).

Therefore, under Rule 201(3), we recognize that a search warrant may be issued to search for and seize property that may constitute “mere evidence” concerning a crime that has been committed. Thus, the Superior Court’s holding is additionally troubling for the reason that the court appears to have substituted its judgment for that of the police with respect to the direction of the unfolding investigation. The police necessarily should have, within all applicable constitutional and legal limits, the widest possible latitude in determining the manner in which to conduct investigations without a reviewing court making a determination that an aspect of the investigation, based on probable cause, was unnecessary.