When reading search warrants, you may have noticed something peculiar about the standard form. Search warrants not only authorize but also command officers to conduct the search. The language used in warrants is mandatory, not permissive.
For example, the federal warrant form not only authorizes but also commands the execution of the search in bold and all-caps: “YOU ARE COMMANDED to execute this warrant…” State warrants follow a similar format, and the statutes authorizing warrants also use commanding language.
However, despite the language on the warrant form, the execution of the warrant is not truly mandatory. If officers choose not to execute the warrant, it is not a problem as the court can reissue the warrant later if needed. Sometimes, the law may even prevent officers from executing the warrant if probable cause is lost before its execution.
So why does the language on warrants sound mandatory but function as permissive in practice? The answer lies in history.
During the common law era, governmental law enforcement as we know it today did not exist. Victims of crimes had to investigate and prosecute crimes themselves, with minimal government involvement. Constables were present, but they lacked strong incentives to carry out arrests and execute warrants. The law of criminal procedure in that time aimed to create incentives for constables to fulfill their duties.
The law regulating constables required them to attempt to execute warrants, or face potential criminal charges or civil suits for neglect of duty. Similarly, constables who made arrests but allowed prisoners to escape could be charged with a crime or sued for negligence.
A constable could be held responsible for an escape if a prisoner he had arrested managed to get away, either because the constable purposely let the prisoner go (known as “voluntary escape”) or because the prisoner escaped despite the constable’s efforts to keep him detained (referred to as “negligent escape”).
In the past, search warrants were primarily obtained to recover stolen goods. A victim of theft would identify where their belongings had been taken, seek a search warrant from a Justice of the Peace, and then require the constable to execute the search to retrieve their property. The victim needed the constable to carry out the warrant, even if the constable may not have been interested in doing so.
The search warrant not only authorized a search but also ordered the constable to execute it on behalf of the victim. An example of a search warrant form from the Justice of the Peace manual, Richard Burns, The Justice of the Peace, And Parish Officer (1793 ed.), illustrates this concept.
The warrant, in this case, was being sought to recover stolen goods belonging to the victim, A.I., who had probable cause to believe that their belongings were hidden in A.O.’s house. The warrant addressed the constable, authorizing and requiring them, along with necessary assistants, to search A.O.’s house and retrieve A.I.’s stolen goods, potentially arresting A.O. in the process.
The specific naming of the officer or officers who were to execute the search in the warrant was significant in an era where constables may have been reluctant to carry out such tasks. Knowing exactly who was responsible for fulfilling the court’s command was essential.
In conclusion, the historical context of search warrants and constable responsibilities sheds light on the importance of naming specific officers in warrants. The evolution of law enforcement practices may have rendered these specifics outdated, but the traditional forms persisted without updating.
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