October 2,
2015
Five Tips for Effective Technical Warrant-Writing
Having worked
in law enforcement at the level of investigator and forensic examiner and
subsequently transitioning to a trainer/private practitioner role, I’m starting
to gather the benefit of something many law enforcement (LE) agents may well
overlook – diversity of experience.
While many of my friends in LE may scoff at some of my professional choices,
I have actually grown to appreciate both
sides of the issue with regard to investigation and digital forensics. After all, what we’re really after is the truth!
Along with
the diversity of experience comes the opportunity to review and scrutinize
various legal documents submitted on behalf of the government (or other
parties) to obtain information and other suspected relevant materials from
businesses, individuals and other involved parties in both criminal and civil
litigation. Unfortunately, I’m not
always “impressed” with what I read. I
attribute this to many factors including the lack of adequate training, lack of
updated training, lack of writing ability, lack of experience and the simple
fact that the law is always several steps behind technology. In order to help out burgeoning investigators
of electronically-facilitated crime and increase the effectiveness of search
warrants, court orders and other legal filings that may become necessary in
these types of investigations, here are five tips to keep in mind when
constructing your affidavits:
1)
More is More
Yes, I know
in the police academy you are taught that less is more. Just the facts. Don’t elaborate. Don’t get too detailed. Write like a cave man. The problem is, the more ambiguous you are in
your affidavit, the more holes the defense can drive through your facts. Be specific, deliberate and write as if
someone is actually going to read the darn thing! In other words, make it flow well, like a
story. If it helps, think about the fact
that the outcome may very well be to potentially punish someone for a good
portion of their life rests in your hands as the architect of that
document. If that authority and
responsibility is something that you appreciate, then you should be as verbose
as you need to be in order to establish the facts surrounding your probable
cause. You owe it to your case, your
reputation and, believe it or not, you owe it to the suspect.
2)
Don’t Assume Your Audience
Knows Anything
When
composing warrant affidavits for legal tech items or information, you have to
develop the ability to explain very technical items to very non-technical
people. This may be your supervisor,
magistrate, prosecutor, defense attorney, judge, or the jury. Don’t assume that everyone knows what a smart
phone is or what you can do with it or that apps can be used for a myriad of
purposes. Don’t assume that people know
what Craigs List is or the multitude of items or services you can get from
it. The first Magistrate I went before with
my first electronic search warrant affidavit was a dinosaur. He literally pecked one letter at a time on
the keyboard and when he saw how lengthy my PC was, he literally cursed
me. But he also appreciated the
authority and comes with the ability to invade someone’s home or business and
what an awesome responsibility it is to make sure we get it right.
3)
Get With Someone Who
Knows More
The value of
mentorship cannot be understated when investigating crimes that are complex in
nature. No man (or woman) is an island,
so don’t think you know everything and try to go it alone. Drop your ego, realize what you don’t know
and ask for help. I had several mentors
starting out and still look upon them as far more knowledgeable than I. They just can’t get online and publish a blog
because their command staff would have a [proverbial] cow.
Use every
resource at your disposal – colleagues, list serves, online articles… You’ll learn more and grow infinitely more
than you’ll ever realize.
4)
Know What You’re Talking
About & Don’t Fudge
The term “fake
it till you make it” is a fairly tried and true business practice, but it has
no place in law enforcement or investigations.
“Faking it” might as well be lying on an affidavit. I once knew an investigator who fudged data
from an electric company to beef-up his PC for a search warrant in a drug
case. When it was discovered during his
testimony at a pre-trial hearing, the judge understandably didn’t care for it
too much. Even worse, his credibility
was shot… and it’s all on the record.
The stats
aren’t worth it. If you don’t know, say
you don’t know. Don’t make it up and don’t
embellish.
5)
Proofread, Review, Repeat
Many
investigators are over-worked, there’s no doubt about that. In order to save time and effort, “boiler-plate”
affidavits are often used to streamline the process. There’s nothing wrong with this, but you must
review the items every single time you
construct your document. It only takes
one word to completely screw up the efficacy of your warrant in a suppression
hearing, so do yourself a favor and take the time to really review, scrutinize
and revise your documentation, facts and application for warrant. When you’ve done it, do it (at least) one
more time just to be sure. When that’s
done, ask yourself if it passes the “mirror test” – if you can look yourself in
the mirror and know that everything is the way it should be, you’re in a good
place.
Writing
decent affidavits and other legal paperwork is part of your legacy as an
investigator and/or examiner. Whatever
other mistakes you may make along the way, you will ultimately be assessed by
others on your professional reputation by judges, juries, defense attorneys,
prosecutors and other investigators.
That reputation is something that needs to be nurtured, honed and never
taken for granted. Step one is to know
how to articulate yourself in such a manner to shore up that reputation as time
goes on.
I recently
spoke with the prosecutor with whom I used to work many, many cases. He said he’s received several inquiries about
me from other attorneys since I transitioned to the private sector and has told
them “He’s thorough, he knows his stuff and he doesn’t lie.” I appreciate those
words more than almost any award or certification. Hopefully, you’re well on your way to having
the same said about you!
Author:
Patrick J.
Siewert, SCERS, BCERT, LCE
Principal
Consultant
Professional
Digital Forensic Consulting, LLC
Based in
Richmond, Virginia
Available
Globally
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond,
Virginia. In 15 years of law
enforcement, he investigated hundreds of high-tech crimes, incorporating
digital forensics into the investigations, and was responsible for
investigating some of the highest jury and plea bargain child exploitation
cases in Virginia court history. A
graduate of both SCERS and BCERT (among others), Siewert continues to hone his
digital forensic expertise in the private sector while growing his consulting
business marketed toward litigators, professional investigators and
corporations.
