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Manl-ID: LHBSAXO LEGAL HANDBOOK FOR SPECIAL AGENTS APPENDIX APPENDIX|8. SEARCH WARRANT UPON ORAL TESTIMONY (FORMERLY LHBSA, PART 1, 2-6) *x*peEDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls: |8-1 Search Warrant Upon Oral Testimony | (Formerly LHBSA, Part 1, 2-6) Rule 41(c) (2), FED.R-CRIM.P., establishes a procedure for the issuance of a search warrant where the circumstances make it reasonable to dispense with a written affidavit presented in person to a magistrate. The rule provides that a federal magistrate judge may issue a warrant based upon sworn testimony communicated by telephone, radio, or other electronic method of communication. Thus, state judges are not authorized to issue warrants under this rule. Guidelines for such issuance have also been established by the U.S. Magistrates’ Committee of the Judicial Conference. Rule 41(c) (2) and the Guidelines specify the following procedures to be followed for issuance of a warrant based upon oral testimony. (1) Prior to contacting the magistrate, a "duplicate original warrant (A.0. Form 93A) must be prepared by the Agent seeking the warrant. A copy of the duplicate original warrant should be prepared and retained in the case file. Whenever feasible, the probable cause statement should also be prepared and reduced to writing before contacting the magistrate. (2) Whenever practicable, an AUSA should be included in the telephone conversation. (3) After the magistrate is informed of the purpose of the call, the magistrate is required to immediately place under oath each person whose testimony forms the basis of the application. While this is the magistrate's responsibility, the Agent must ensure that he/she has been so sworn prior to providing any information. The magistrate is also required to record the conversation by means of a voice recording device or, if unavailable, by means of a stenographic or longhand record. (4) After being sworn, the need for employing this telephonic procedure is to be established by the Agent seeking the warrant. In demonstrating such need, the following factors are relevant: (a) The Agent cannot reach the magistrate in his or her office during regular court hours; (b) The Agent conducting the search is a significant distance from the magistrate; (c) The factual situation is such that it would be SE eee Ts (ati‘“SS P 1 Printed: 05/05/2004 13:08:54 age