Affidavit Writing Made Easy: Create an Outstanding Warrant

Affidavit Writing Made Easy:

Create an Outstanding Warrant Application Every Time

By Michelle M. Heldmyer

Attorney-Advisor (Instructor), FLETC ALG

Even for the most experienced law enforcement officers, writing an

affidavit can be a daunting task. Ensuring your affidavit is legally

sufficient, organized, easy to read, and even interesting, is

challenging in the best of circumstances. The undertaking is often

compounded by time constraints and the demands of prosecutors

and judges. But with simple guidelines and a few easily accessible

tools, every prospective affiant can create an impressive warrant

application.

The Basics

Every search and arrest warrant application is governed by rules.

The primary rule is found in the Fourth Amendment to the U.S.

Constitution: each warrant requires probable cause, supported by

oath or affirmation, and particularity. More specific rules governing

warrants are located within each jurisdictions’ rules of criminal

procedure. Affiants need to be familiar with those rules, as they

govern every stage of the process, from content to issuance to

service of warrants.

To satisfy Constitutional and procedural requirements, warrant

applications are accompanied by affidavits, designed to satisfy the

court that the evidence in the case is sufficient to establish

probable cause. The affiant swears or affirms the provided

information is true and correct. Affidavits can, and usually do,

contain hearsay information, because generally the rules of

evidence do not apply. They can, and usually do, contain supportive

information from multiple sources, including other officers and

agents, documents, forensic examinations, expert analysis,

witnesses, victims, and the affiant’s training and experience.

Affidavits do not need to contain all information known by the

affiant – they need only reach the level of probable cause to support

the request. Probable cause only requires a fair probability, given all

the facts and circumstances provided in the affidavit, along with the

training and experience of those contributing to the affidavit, that

evidence will be found (for a search warrant) or the subject

committed a crime (for an arrest warrant).

Every request for a warrant is made in furtherance of a criminal

case, which means criminal statutes are involved. Because an

affidavit must contain proof of the violation of at least one

particular statute, knowledge of that statute is imperative. Do not

assume knowledge of what the statute says. Read it.

After reading the statute, the affiant will need to know its elements.

The best source of this information is the criminal jury instructions

book in your jurisdiction. Most are available online. They are

written plainly, for an audience with no legal experience, and are

easy to understand. More importantly, the elements specified in the

jury instructions tells the affiant what evidence is relevant and

necessary to support a finding of probable cause.

Building the Affidavit

Having identified your offense elements and verified you have

enough evidence in support of each and every element to obtain a

warrant, outline the affidavit. Arrest warrant affidavits are

commonly more concise and less detailed than search warrant

affidavits because they are usually followed by an additional

probable cause finding, like a preliminary hearing or grand jury

presentment. But both types of affidavits require the affiant to

establish probable cause, so the basic purpose and structure are

the same.

Each paragraph should be numbered and the document formatted

to your court’s specifications, if any. A solid basic structure can

look like this:

Illinois v. Gates, 462 US 213 (1983)

1. Affiant’s name, title, experience, jurisdictional authority.

Emphasize training, experience and knowledge relevant to the

type of crime named in the warrant. Remember, training and

experience add to probable cause.

2. Statutory violations involved in investigation and other relevant

legal citations (i.e., definition statutes, regulations, authority).

3. Statement of purpose of affidavit. “This application is

submitted in support of my request for the issuance of a

search warrant for the residence located at 1234 Main Street,

Anytown, State.”

4. Overview/summary of investigation. The more complex the

investigation, the more important this “executive summary”

section becomes.

5. Statement of probable cause. “This affidavit establishes

probable cause to believe evidence of controlled substance

distribution, in violation of 21 USC 841(a)(1)&(b), will be found

at the residence located at 1234 Main Street, Anytown, State”

or “there is probable cause to believe James Blow committed

the offense of controlled substance distribution, in violation

of…”

6. Statement of limited presentation of facts. “This affidavit does

not include all of the facts known to me, but only those facts

relevant and sufficient to establish probable cause.”

7. Definition section, if necessary. Include definitions if you need

to use special terminology in the affidavit.

8. Facts, to include support for each and every element of the

offense or item to be seized (addressed next).

9. Conclusion. Tie the facts together, and ask for what you want.

Much of the content of most affidavits is standard (“boilerplate”)

language and can be reused in multiple affidavits. For example,

affiants can create one basic paragraph about themselves and their

training, experience, and jurisdictional authority, then simply tailor

it for each case. Also, certain types of affidavits should contain

specialized information which can be taken from other similar

affidavits. Computer searches, child pornography investigations,

and complex fraud cases, for instance, contain established

language which the affiant can obtain and insert into the affidavit.

The prosecutor will have access to much of this standard language.

The Department of Justice (DOJ) is another resource. The

Computer Crimes and Intellectual Property (CCIPS) and Child

Exploitation and Obscenity (CEOS) Sections of the DOJ, along with

several other special DOJ sections, can provide advice and warrant

language.

The Facts Section

Armed with knowledge of the applicable statutes and an outline of

the affidavit, build the facts section. Most are written

chronologically, but this style is not required if another is more

effective. Background information offered prior to the pertinent facts

can be helpful for context, but less is better. Do not presume

knowledge of any fact or technical subject, and even some legal

issues should be spelled out clearly.

If you have exculpatory information or information discrediting any

of your sources of facts, consult with the prosecutor about whether

to include it in the affidavit.

Facts included in an affidavit must be attributed to their source.

The court must determine the credibility of the information, and

cannot do so without knowing from where it came. If using

informants, names can be withheld, but information about their

credibility and the basis of their knowledge is important. Also, if you

are “cutting and pasting” from other reports, proofread carefully to

smooth out transitions and to remove repetitive or sensitive

information.

Active voice is usually preferred over passive voice. Say, “Officer

Jones interviewed witness Cheryl Adams” rather than, “Cheryl

Adams was interviewed by Officer Jones.”

The use of the term “Your Affiant” to refer to the writer is common

but archaic. Consider the simpler version; just call yourself “I”

instead.

Certain types of information should be avoided in the facts section:

1. Discredited information. If information or its source has been

found to be unreliable, do not include it.

2. Argument. Affiants should appear objective throughout the fact

section.

3. Conclusory statements. Avoid references such as, “we

investigated, and determined this…” or “a confrontation

occurred and a struggle ensued.” Include factual descriptions

and attribution instead: “According to witness Smith, Jones

ran toward Harris and demanded money. Immediately

thereafter, Harris grabbed Jones’ arm and pulled Jones to the

ground.”

4. Repetitive statements. Say it once and move on.

5. Police jargon. For example, avoid use of military time or terms

like “BOLO.”

6. Technical terminology. If you must use it, define it accurately.

7. PII. Personally identifiable information (“PII”) could potentially

become part of the public record, so avoid it if possible. Courts

are becoming accustomed to references such as “year of birth

1985” or “date of birth x/x/1985.” If PII must be used, be

prepared to redact it prior to any disclosure of the affidavit.

Courts usually have redaction procedures in place.

Conclusion

Writing an affidavit need not be difficult. Once you have read the

statutes and rules, and become familiar with all the facts of the

case, the pieces will fall into place. Get organized, find time to write

uninterrupted and get to work. Remember your best resource is

always your prosecutor.

Ms. Heldmyer has been a Legal Instructor at FLETC Artesia for 2 years. Before joining FLETC,

she served 26 years as an Assistant United States Attorney in Colorado and Florida.