Once known only to federal courts, namely the FBI, the use of covert search warrants has seen increased usage in California State Courts. A covert search warrant authorizes governmental agents to enter a a home or other building when nobody is present, to search for specific evidence and possibly photograph or videotape it, and to leave without taking anything or giving notice that a search occurred.

There is no California law upholding the use of covert search warrants, in fact some legal scholars believe them to be illegal under state law. Some federal courts have ruled that police officers who use a covert warrant can take and use non-physical evidence(such as visual images and information that evidence exists). The case that supports this proposition is United States. v Freitas (9th Cir 1986) 800 F2d 1451, 1455. Federal Judges and Magistrates that allow covert search warrants recommend delaying notice that the search occurred for up to seven days.

More recent federal law permits up to 30 days’ delayed notice as amended by USA PATRIOT Act; Fed Crim Rule 41(f)(3). Federal law intimates the following procedural safeguards when allowing this type of warrant: 1).The probable cause affidavit must show that a covert search is peculiarly necessary; and 2).Special instructions must authorize a covert search and excuse compliance with notice requirements until a specified date.

Matthew Ruff is a Torrance Criminal Defense Attorney with over 30 years experience defending the rights of those accused of criminal offenses in California.