 A Federal Judicial Center Orientation Series for United States Magistrate Judges Criminal Litigation Before Magistrate Judges Part 1 – Complaints, Warrants for Arrest, and Search Warrants with the Honorable Aaron E. Goodstein Judge Goodstein was appointed United States Magistrate Judge for the Eastern District of Wisconsin in 1979. He is a member of the Federal Magistrate Judges Association and has served as chair of the Federal Judicial Center's Magistrate Judges Education Committee since 1990. Welcome to the Federal Judicial Center's Orientation Series for United States Magistrate Judges. This program, Criminal Litigation Before Magistrate Judges, is program one in the series. It addresses the major responsibilities of magistrate judges in criminal cases. In part one of the program, I'll discuss three of the functions you can expect to perform during the initial stages of a criminal case, issuance of complaints, issuance of arrest warrants, and issuance of search warrants. Part two will address your responsibilities in the areas of pretrial services, appointment of counsel, initial appearances, preliminary examinations, and detention and removal hearings. Parts three and four will discuss the functions of the Central Violations Bureau and the trial of a misdemeanor case. Program two of the series will discuss various administrative matters affecting you and your staff. Our intention is not to cover every possible situation you might encounter, but rather to provide you with an overview of the basic legal requirements and some practical suggestions for handling these matters. The outline accompanying the program presents an overview of the topics I will cover. It also provides additional notes and case references that have been accepted as law for some time. Keep in mind when referring to them that the law is constantly changing. Therefore, I suggest that you refer to the most current addition of the legal manual for United States magistrates, which contains an excellent discussion of the topics we'll be concerned with. It's designed as a basic research tool and training guide for newly appointed magistrate judges, and serves as a convenient reference manual for more experienced magistrate judges. Also, throughout the program, you will hear me refer to the rules. I am, of course, referring to the federal rules of criminal procedure. Before I begin, I'd like to take a few minutes to talk to you about your role as a magistrate judge. Magistrate judge is playing indispensable role in helping district courts process and decide cases. As you will see, our duties vary from court to court, depending on the size and character of the judicial district, and the nature of the court's caseload. In most districts, however, we perform a variety of functions. The basic jurisdictional provisions for magistrate judges are found in Title XXVIII, Section 636 of the United States Code. They cover four broad categories of proceedings. One, initial proceedings in criminal cases. Two, misdemeanor and petty offense trials. Three, pretrial matters in other proceedings referred by district judges. And four, civil cases on consent. The video program you are watching deals primarily with the first two categories, initial proceedings in criminal cases, and misdemeanor and petty offense trials. This first tape covers three of the functions you will perform during the initial stages of a criminal case, the issuance of complaints, arrest warrants, and search warrants. Let's begin with the complaint. In the appendix to your written materials, you'll see a criminal procedure flowchart similar to the one shown here. As you can see, a complaint is one of the two main ways the federal accusatory process begins. The second is by way of an indictment, which is issued by a grand jury. Before a complaint is issued, there has been an investigation of alleged criminal activity. This investigation is usually conducted by a federal law enforcement agency, such as the FBI, the Drug Enforcement Agency, or the Bureau of Alcohol, Tobacco, and Firearms. Upon completion of the investigation, it is the job of the U.S. Attorney, a prosecutor for the federal government to decide whether the alleged criminal conduct should be prosecuted in federal court and whether a complaint signed by the magistrate judge or an indictment from the grand jury should be sought. You should note that a charge can also be brought by way of an information, which can be filed by the prosecutor in misdemeanor cases or in felony cases when a defendant waves the right to be charged by the grand jury. Keep in mind that for felonies, the issuance of a complaint simply commences the formal accusatory process. That's because under the Fifth Amendment to the United States Constitution, a person must be charged by way of an indictment in felony cases. So even after a complaint is issued and the defendant is arrested and makes an initial appearance, an indictment must still be returned before that defendant is required to enter a plea and the remainder of the pretrial procedures ensue. Rule 3 of the Federal Rules of Criminal Procedure governs the issuance of a complaint. It states that the complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate judge. Rule 3 also requires that the complaint 1. Identify the accused 2. Describe the federal offense allegedly committed, including the date and place and 3. Provide sufficient facts to establish probable cause. The complaint is not prepared by you but by the Assistant U.S. Attorney, often referred to as the AUSA. The Assistant U.S. Attorney will generally use the standard AO complaint form that is included in the appendix to your outline. Now that we know what the complaint must contain, what about the procedures for issuing the complaint? As I mentioned earlier, the U.S. Attorney for each district is responsible for prosecuting all federal offenses within the district. From time to time, however, you will be asked by a private citizen to issue a complaint on his or her behalf. What should you do? Rule 3 simply says that the complaint shall be made upon oath before the magistrate. While there is no statutory prohibition against private citizens filing complaints, it is the United States Attorney who is statutorily vested with his prosecutorial responsibility. So if you receive such a request, be certain to direct the individual involved to the Office of the United States Attorney. You should make it your practice to have an Assistant U.S. Attorney present when the complaint is presented to you for issuance. If it is impossible or impracticable to have an AUSA physically present, make sure the Assistant can be reached by telephone. That's because in most cases, it is the Assistant who prepared the complaint and affidavit based upon information received from the agent. Also, if you have any questions regarding the complaint in affidavit, or if any portion needs to be modified, it will usually be the Assistant who is in the best position to respond or make the necessary changes. Remember, it is not the job of the magistrate judge's staff to prepare the complaint in affidavit or to make any changes to these documents. It is the duty of the magistrate judge to review and evaluate, not draft. If you're in a situation where minor changes are needed and the Assistant cannot be present, have the Affiant who is present make the changes in writing. If more substantial changes are necessary, have the Assistant U.S. Attorney make the changes and fax them to your office. The Affiant is usually a federal law enforcement officer. The rules, however, do not prohibit a state law enforcement officer from seeking a complaint. In the case where a state officer is the Affiant, that officer should still be accompanied by an Assistant U.S. Attorney. Note that when dealing with the issuance of a search warrant, Rule 41 of the Federal Rules of Criminal Procedure specifically states that it must be requested by a federal law enforcement officer. Before you sign the complaint, you must do two things. Place the Affiant under oath and have the Affiant sign the complaint in your presence. No particular form of oath is required, but as a suggestion you might say, do solemnly swear or affirm that the statements contained in the complaint in Attached Affidavit are true and accurate to the best of your knowledge and belief. On the face of the complaint, you'll see that you must also certify in writing that you have administered the oath. This serves as sufficient evidence that the oath was taken. You will want to develop procedures that will permit you adequate time to evaluate the complaint and search warrant. There is nothing worse than having the agent, or AUSA, or both, standing over you waiting while you are evaluating the complaint in Affidavit. Therefore, you may want to institute a practice of requiring that a copy of the complaint be dropped off at your chambers as soon as it is ready so that you can review it privately and set a time later in the day for issuance. Nevertheless, there will always be those emergency situations which do not permit you the luxury of sufficient time. Of course, emergencies are often a matter of perception. You should always be the one to determine whether or not time is really of the essence. Upon issuance, you should retain the original complaint and a copy of the arrest warrant. The agent should receive the original arrest warrant, which will be returned to court after it is executed, as well as a certified copy of the complaint. What about your evaluation of the complaint? What are the standards for issuance? You must review the complaint and the attached Affidavit personally to determine whether probable cause exists to believe that an offense has been committed and that the accused has committed it. These are the two requirements of Rule 4A of the Federal Rules of Criminal Procedure. In determining whether probable cause exists, you are permitted to rely on hearsay evidence. The rules of evidence prohibiting the receipt of such evidence, except under certain circumstances, do not apply. In fact, most Affidavits will contain hearsay evidence from confidential informants. Your determination of probable cause must be made only from the complaint, the Affidavit, and any attachments. Unsworn information must not be considered. You may find in some cases that the affine will want to give you additional information, that is, information not contained in the written Affidavit. If this should happen, you should inform the agent that you will consider the information only if the Affidavit is formally supplemented. The standard you should use to determine probable cause is the totality of the circumstances. This means that you are to make a practical, common-sense decision whether, given all the circumstances set forth in the Affidavit, there is a fair probability that the accused has committed a crime. Now a few cautionary suggestions. Your evaluation should not be overly technical. On the other hand, only reasonable inferences may be drawn from the facts. As stated earlier, you may consider hearsay evidence, but in determining what weight you give to such evidence, you are to consider the veracity and basis of knowledge of the person making the hearsay statements. Remember, only a probability of criminal activity need be established. The government is not required to negate every argument or explanation that can be asserted against the probability. For example, if there is a convicted felon who had a sought-off shotgun in the trunk of his car and even if there may be an innocent or non-enculpatory reason, such as lack of knowledge of its existence, you are still permitted to draw the reasonable inference of possession of a firearm by a convicted felon to support the gun violation. Finally, don't forget that the Affidavit must contain all of the elements of the offense charged. You should always have a copy of the statute allegedly violated next to you when you review the complaint. Sometimes, a basic but essential element of the offense is erroneously omitted. For example, to confer federal jurisdiction in a bank robbery case, it's essential to state that the financial institution that was robbed is insured by the FDIC. The magistrate judge is not required to accept or reject a complaint as presented. After reviewing the affidavit, you may have certain concerns. That is why it is essential to have the issuance conference with the affiant and the AUSA. The affiant often has sufficient information to satisfy your concerns, but has failed to put it in the affidavit. For example, the affidavit may simply set forth the information received from the confidential informant without stating anything about the informant's reliability or how the informant obtains such information. You should then question the affiant about prior dealings with the informant. The response may be that the informant has been a very reliable source in the past and has provided information resulting in the issuance of successful search warrants. Once you are satisfied, have the agent supplement the affidavit to establish the reliability of the informant. If time is short, the agent can simply add a handwritten paragraph and initial it. Otherwise, have the AUSA go back to the office and make the necessary changes. In reviewing the contents of a complaint, you need not be concerned with the problem of staleness, which might be encountered with a search warrant. With a search warrant, the question is whether there is probable cause to believe that the items to be seized are presently at the place to be searched. With a complaint, the issue is whether there is probable cause to believe that an offense has been committed. That finding will not dissipate or become stale with time, unless the statute of limitations has elapsed. What happens if after a thorough review of the complaint and a discussion with the affiant and the AUSA, you determine that probable cause has not been established and cannot be established even with redrafting? The answer is simple. You reject the complaint. You advise the AUSA that you will not be issuing the complaint and state your reasons. You need not prepare a written rejection. Simply advise the AUSA orally in your chambers. The AUSA still has several options. For example, the AUSA can still seek an indictment. If the grand jury finds probable cause, that will establish an independent basis for the prosecution. The AUSA can also present the complaint to the district judge. However, in such an instance, the AUSA has an obligation to advise the judge that the magistrate judge has rejected the complaint. Another possible option for the AUSA is to take the rejected complaint to another magistrate judge. This practice, known as magistrate shopping, should not be encouraged, whether it pertains to a rejected complaint or a rejected search warrant. You should consult with the other magistrate judges in your district to see if there is a policy regarding this practice. The federal statute, which governs the time requirements for processing a criminal case, is the Speedy Trial Act. The Speedy Trial Act, which begins at Title 18, Section 3161 of the United States Code, seeks to ensure Speedy Trials for criminal defendants by limiting the length of time that may elapse between significant events that occur in the processing of a criminal case. The Act's clock does not begin to run until formal charges are filed by way of an indictment or information. The Act does, however, require that such charges be filed no later than 30 days after a defendant is arrested or served with a summons on such charges. This means that after you issue the complaint and the defendant is arrested, the government has 30 days to obtain an indictment from the grand jury. If not, the complaint is to be dismissed on the defendant's motion. Once the indictment is filed for charges resulting from those in the complaint, no further proceedings are conducted on the complaint. The complaint should then be dismissed on the government's motion. Even though the clerk's office will do the actual Speedy Trial Act computations, I recommend that you acquaint yourself with the requirements of this Act. Let's turn our discussion to another function of the magistrate judge, the issuance of arrest warrants. Once you have determined that there is probable cause that the accused is committed an offense, a warrant for that person's arrest should be issued. The arrest warrant directs law enforcement officers to apprehend the accused and to bring him or her before a magistrate judge without unnecessary delay. In some cases, the attorney for the government may request that a summons be issued for the defendant's appearance instead of a warrant. Rule 4 of the Federal Rules of Criminal Procedure governs both arrest warrants and summons. As with the complaint, the attorney for the government should have an arrest warrant prepared for your signature. In cases involving more than one defendant, there need only be one complaint naming all defendants, but a separate arrest warrant should be prepared for each defendant, especially if the defendants are apprehended at different times and in different places. It is important that the same docket number that appears on the complaint also appear on each warrant. What must be included in the warrant? There are several things you should be certain to look for on the warrant. In accordance with Rule 4C1, the face of the warrant must contain the name of the defendant or if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty. For example, if the defendant's real name is unknown, a description such as white male known as squeeze approximately 6 feet 2 inches tall and weighing 280 pounds with a tattoo of a snake on his left forearm is probably sufficient identification. Photographs can also be attached to the warrant for the purpose of identifying the defendant. For instance, a photograph of the accused, such as one taken by a bank surveillance camera, should be attached to the warrant if the defendant's name is not known. The defendant's address should also be indicated on the warrant if it is known. Any additional identifying information that is attached to the warrant should also be referred to on the face of the warrant in the event the documents become separated. The warrant should also contain a statement that a complaint has been issued and describe the offense charged in the complaint. This should be spelled out with sufficient specificity to give the defendant notice of the charge. Rule 4 also requires that a magistrate judge sign the arrest warrant. You should sign the arrest warrant only after you are satisfied that the facts presented in the complaint in affidavit in support of the arrest warrant establish probable cause. There is no time limit for executing the arrest warrant. It can be executed at any place within the jurisdiction of the United States. Once executed, the warrant must be promptly returned by presenting the accused to the nearest available magistrate judge. Let's talk for a moment about one of the conditions of the defendant's release, monetary bond. You'll notice that there is a space on the bottom of the warrant for you to insert an amount for bail. But is the issuing magistrate judge or the magistrate judge who conducts the defendant's initial appearance, the appropriate judicial officer to set the amount for bail? Rule 9b1 of the Federal Rules of Criminal Procedure states that the issuing magistrate judge can fix the amount of bail and indicate it on the warrant. The notes of the advisory committee following Rule 9 also comment on this. They indicate that setting the amount of bail will help facilitate release in the district of arrest. But the practice varies among magistrate judges. Many decline to establish an amount of bail on the basis that they know nothing about the defendant and that it is more appropriate for the magistrate judge in the district of arrest to address the issue of release or detention at the initial appearance. Others take the position that since they know the facts and circumstances of the alleged offense, the amount of bail they set will indicate the seriousness of the offense to the magistrate judge before whom the defendant initially appears. Whatever practice you adopt, remember that the amount you set is not binding on the magistrate judge who conducts the initial appearance. Of course, defendants are often arrested without a warrant. This may happen either when a felony is committed in the presence of law enforcement agents or when probable cause exists and the exigency of the circumstances make it unreasonable to require the agent to prepare a complaint and obtain a warrant before arresting the suspect. Warrantless arrests occur frequently in cases involving drug transactions monitored by federal agents. Before we go on, let's take a look at a hypothetical drug case used in another center program and use it to illustrate some of the issues you must consider following a warrantless arrest. Let us suppose that drug enforcement agent Ralph Brown has been conducting an investigation into alleged drug trafficking. Working undercover, Brown approaches two people sitting in a van parked in a secluded area. Brown asks them if they have any cocaine for sale. The passenger turns and says something to the driver, but Brown cannot hear what she says. Then the passenger, later identified as Angela Smith, gets out of the van. Smith negotiates an agreement with Brown as they walk into a clearing. Brown then buys 540 grams of cocaine from Smith. After Brown makes the purchase, he leaves the area where he bought the drugs from Smith. Brown then uses a radio to broadcast descriptions of Smith and the driver of the van to a DEA arrest team waiting nearby. The arrest team moves in and detains Smith. The van, however, has already left the scene. Meanwhile, Brown conducts a field test to ensure the substance he received from Smith was really cocaine. After Brown identifies Smith as the person who sold the cocaine to him, Smith is placed under arrest and advised of her constitutional rights. We've just watched an illegal drug transaction take place in the presence of law enforcement agents. Rule 5 of the Federal Rules of Criminal Procedure requires that the arresting officer bring the defendant, in this case Angela Smith, to the nearest available magistrate judge without unnecessary delay. Case law continues to develop on the issue of what constitutes without unnecessary delay. Some districts have set a specified time limit, such as 17 hours or 24 hours within which the person must appear for what is called the initial appearance. Rule 5A also states that if a person is arrested without a warrant and is brought before the magistrate, a complaint shall be filed forthwith. In other words, by the time that person makes an initial appearance, a complaint must be prepared. Remember, it is the issuance of the complaint that constitutes the determination of probable cause for arresting the person. Procedure should be developed in your district for how to deal with a warrantless arrest. The AUSA and law enforcement agencies in your district should know whom to notify so that the process for issuing the complaint and scheduling the initial appearance can be set in motion without delay. Special procedures should be developed for arrests that occur on weekends or holidays. Another important function performed by the magistrate judge is issuing search warrants. As can be seen on the flowchart, search warrants are most frequently sought during the investigative stage of criminal proceedings, but application can be made at any time, even after the defendant has been charged. In talking about search warrants, it's important to emphasize the role you play as a neutral and detached traditional officer. Like the arrest warrant, the search warrant is a powerful instrument. It authorizes government officials to enter private places and seize personal property in light of the constitutional guarantees of reasonable expectation of privacy and security against arbitrary government intrusion. And the practical consideration that valuable evidence of a criminal offense may be seized, it is crucial that there be strict compliance with the requirements of the Constitution and federal law when search warrants are issued. The starting place for any discussion of the issuance of search warrants is the Fourth Amendment. The requirements of the Fourth Amendment must be observed when a search warrant is issued. But remember, the law interpreting or applying the Fourth Amendment is constantly developing. Thus, it will be incumbent upon you to keep current with the pronouncements of the Supreme Court and the law in your circuit on search and seizure. While the Fourth Amendment establishes the applicable constitutional requirements, Rule 41 of the Federal Rules of Criminal Procedure sets forth specific procedures for the issuance of search warrants. Rule 41b authorizes the issuance of a search warrant to search and seize property that constitutes evidence of the commission of a criminal offense, contraband the fruits of crime, or things otherwise criminally possessed, property designated or intended for use, or which is or has been used as the means of committing a criminal offense, and persons for whose arrest there is probable cause or who are otherwise unlawfully restrained. As to this last category, an arrest warrant only permits entry into the residence of the person to be arrested. A search warrant justifies entry into the residence of a third person to arrest an individual. Rule 41a states that the search warrant may issue for the search of a person or property within the district, or outside of the district if the person or property was inside the district when the warrant was sought. It also authorizes a state court judge of record to issue a search warrant. This is, of course, different from Rule 3, which authorizes only magistrate judges to issue complaints. However, the state court judge may issue a warrant only for persons or property within the district. It is best to reach an understanding with the United States Attorney that requests for federal search warrants will be made from state court judges only when there are no federal judicial officers available. Rule 41a also differs from the procedures for issuance of a complaint in that it permits only federal officers or attorneys for the government to request a search warrant. A complaint may be requested by a state officer. Rule 54c of the Federal Rules of Criminal Procedure provides a definition of an attorney for the government. In Chapter 4, Volume 1 of the Legal Manual for United States Magistrates contains a listing of the various federal law enforcement officers authorized to request search warrants. You should remember, though, that there are joint state and federal drug task forces where state officers have a special drug enforcement agency status. Let's talk for a moment about the procedures for issuing a warrant. The first thing the rules require is for the warrant to be issued by a neutral and detached magistrate. In order to fulfill this role, you should develop procedures and techniques which will assure this and which will avoid the criticism sometimes heard that we are simply a rubber stamp for the government. But just how do you satisfy your obligation to be neutral and detached? There's no simple answer, but what you might want to keep in mind is that neutral and detached means that you are neither an ally nor an adversary of the government. This does not mean that you should cavalierly say this isn't good enough, bring me another one. I'll be here until five o'clock. On the other hand, it's not your job to dictate to the agent what you think he or she should put in the application. Many of the procedures we discussed with respect to issuing complaints also apply to search warrants, such as having the AUSA drop the warrant application off in advance. Again, you should have the AUSA available in person or by telephone at the time of issuance. You should also develop weekend and holiday procedures. Like the complaint and the arrest warrant, the search warrant will be drafted by the AUSA using standard warrant and application forms developed by the administrative office. Copies of these and other forms mentioned in the program can be found in your outline or in the appendix to volume two of the legal manual for United States magistrates. The affiant, who is a federal law enforcement officer, is to be placed under oath and must sign the application for the search warrant in your presence. You sign the certification on the application indicating that you have placed the agent under oath and then sign the warrant inserting the date and time of issuance. There is also a provision in Rule 41 for issuing search warrants without oral testimony communicated by telephone. This situation and emergency situation does not occur very often, but you should be aware of it and follow the special procedures set forth in Rule 41C when the situation does arise. You must also insert a date on the warrant specifying the date by which it is to be executed. A search warrant must be executed within 10 days. Rule 41C1 has established 10 days as the maximum limit, but you should set a date that is tailored to the circumstances. For example, when searching for drugs, you will probably set a much shorter time, possibly the same day or the next day, since the drugs may not be on the premises for much longer than that. A search warrant is also to be served in the daytime, defined as between 6 a.m. and 10 p.m. If reasonable cause is shown, you may authorize execution at any time. This authorization should be indicated on the face of the warrant. The standard for probable cause to issue a search warrant is again whether, given the totality of the circumstances, there is a fair or reasonable probability to believe that the evidence at issue will be found at the particular place identified in the warrant. Sometimes the affidavit in support of the complaint will contain enough information to support a search warrant as well. Probable cause must be based upon more than mere suspicion, but it can be based on less evidence than that necessary to justify conviction. In making your probable cause determination, you need not determine that the evidence or contraband is in fact on the premises to be searched, more likely than not to be found on the premises. You need only conclude that it would be reasonable to find the evidence in the place to be searched. In other words, probable cause requires a nexus between the evidence and the location. There is no restriction against requiring an abundance of probable cause. This practice might diffuse later challenges to the sufficiency of the warrant or challenges that the agent misled you by not presenting the total picture. For example, it is better to have the affidavit disclose that the confidential informant was arrested for drug dealing or has used drugs. You can then assess how this affects the reliability or trustworthiness of the informant and it diffuses a later challenge by the defendant that the government was guilty of a material omission that would have affected the warrant's issuance if the warrant had been disclosed. Here say information may be used as a basis for supporting probable cause for the issuance of a search warrant. But be mindful to check the currency of the information. You must avoid relying on stale information. You must be satisfied that the evidence or contraband is presently on the premises. An affidavit that simply says that an informant saw drugs at the residence three months ago or is stale and does not support the issuance of a search warrant. In addition, you must be cognizant of the danger of a general search warrant which is prohibited by the Fourth Amendment. The Fourth Amendment requires that the warrant describe with particularity the place to be searched and the property or persons to be seized. A few comments on the concept of particularity. First, particularity regarding the place to be searched. Normally a street address is all you need to describe the place to be searched. But if the premises is other than a single family residence, then the specific unit or apartment must be described. The standard here is one of practical accuracy as opposed to technical precision. A pivotal factor on review is whether the warrant faithfully described the premises that should have been known to the officers after a reasonable inquiry. So be concerned about the particularity of the place to be searched. Now, particularity regarding the items to be seized. Here, beware of broad or general descriptions. You will find this most difficult when dealing with books and records of a business or individuals. Ordinary business records will often be commingled with those that have evidentiary value. Try and be as specific as possible. For example, have the warrant seek only records kept within a specified time period and identify the names of the institutions or individuals that might appear on those records. Use of catch-all phrases should be avoided. But under some circumstances, the inclusion of phrases such as not limited to will not vitiate an otherwise valid description. Nor will the use of a generic description such as narcotics, paraphernalia, or drug records invalidate the warrant if a more exact description is not possible. You will inevitably encounter situations that will require a special warrant. I will not dwell on these for any great length of time, but I would like to alert you on special types of warrants or warrant-like orders you will be asked to issue. First, magistrate judges are not presently authorized to issue warrants for the interception of wire or oral communications, commonly referred to as wiretaps. But we may issue orders that permit the government to install pen registers or trap-and-trace devices. These do not entail a physical invasion of private property. Look to Title 18, Sections 3121 through 3127 of the United States Code for the procedures you should follow. Magistrate judges may also issue orders for electronic communication records or for the installation of mobile tracking devices. You may be called upon to issue what has been referred to as anticipatory search warrants, so called because at the time the request for issuance is made, the evidence to be seized is not at the place to be searched. You should, of course, review the law in your circuit on this issue. In most cases, though, anticipatory warrants may be approved if the application establishes the certainty and imminency of delivery of the evidence or contraband, usually under the control of government agents. Finally, you will be presented with seizure warrants, which authorize the seizure of property that is subject to either civil or criminal forfeiture. Special considerations regarding the issuance of such warrants can be found in Sections 853 and 881 of Title 21 of the United States Code. Seizure warrants have raised important due process concerns because they often involve the taking of real or personal property which may adversely affect the rights of innocent third parties who have an ownership interest in the property to be seized. This is an area of evolving case law and, again, you should review the law in your circuit. After the warrant has been executed and the agent is ready to return it, Rules 41-D, recording and certification of testimony, and Rule 41-G, return of the papers to the clerk, set forth the ministerial requirements you must follow regarding the return of all receipts and the written inventory of any property that was seized under the search warrant. Upon its return, your involvement with the search warrant is normally complete. The original application, which you've been holding on to, should then be filed with the clerk of court together with the original warrant and inventory which the agent has returned. Once the papers are filed with the clerk, they are a matter of public record. However, there may be valid reasons for sealing the application, such as to protect an informant. If any of the documents are to be sealed for any period of time, the AUSA should present you with a motion to seal and a proposed order, either at the time the warrant is returned or before. Even though the Fourth Amendment guarantees that all persons shall be secure against unreasonable searches and seizures, except when warrants are issued upon probable cause, it should come as no surprise to you that there are many instances when searches are conducted without warrants. The Supreme Court has consistently espoused the view that such warrantless searches are presumptively unreasonable. At the same time, however, the court has recognized that a warrant may be dispensed with in situations in which some exigency supports the need for an immediate search. These situations have become known as the exceptions to the warrant clause. The legal manual for United States magistrates contains an excellent discussion of the various categories of exceptions. This is a continually developing and very volatile area of the law. I end as I began by reminding you that my intent was not to cover every possible situation you might expect to encounter in the initial stages of a criminal case. However, I hope that I have provided you with an overview of some of the basic rules and procedures for issuing complaints, warrants for arrests, and search warrants, as well as some useful suggestions for dealing with these issues. Again, I recommend that you refer to the accompanying outline and the legal manual for United States magistrates. And of course, look to your own court rules should you need additional guidance in these areas. I am confident that you will find your experience as a United States magistrate judge to be challenging and personally satisfying. Welcome aboard.