IA: Fourth Amendment and state statute do not require warrant be at scene of search

Neither the Fourth Amendment (Grubbs and Groh) nor state law requires that a search warrant (here for a blood draw) requires that the warrant be in the hand of the executing officer. It may be “foolhardy,” but it is not unconstitutional. State v. Breuer, 2010 Iowa App. LEXIS 838 (August 11, 2010).

In United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), the Eighth Circuit was presented with the argument that “it was unreasonable for law enforcement officials to commence the searches prior to the arrival of a warrant.” The court disagreed.

While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional. Nothing in the [F]ourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search. …

“The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization,” it speaks to the manner of searching as well as to the legitimacy of searching “simply in terms of the right to be ‘secure … against unreasonable searches and seizures.’” United States v. Banks, 540 U.S. 31, 35, 124 S. Ct. 521, 524-25, 157 L. Ed. 2d 343, 352 (2003). Instead, the issue is one of reasonableness, which is determined on a case-by-case basis. Id. at 35-36, 124 S. Ct. at 525, 157 L. Ed. 2d at 352.

. . .

We agree with the [Grubbs] Court that the right of a person to be free from unreasonable searches and seizures is protected not by the person’s right to argue with law enforcement during execution of a warrant, but “by interposing, ex ante,” the “deliberate, impartial judgment of a judicial officer … between the citizen and the police,” and “by providing, ex post, a right to suppress evidence improperly obtained.” Id. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.