Search Warrant Requirements

A search warrant is a court order that allows the police to search a specific location for evidence that can be used to charge you with and convict you of a crime. To obtain a search warrant, police must convince a judge they have probable cause to believe you engaged in criminal activity. The police typically try to establish probable cause by submitting affidavits or testimony describing observations that cause them to believe you committed a criminal act. If the judge finds the police have probable cause, the court will issue a search warrant.

In most cases, police need a warrant before they can conduct a search. While circumstances exist when a warrantless search is allowed, searches without a warrant are generally considered unreasonable and a violation of your civil rights.

If you were charged with a crime based on evidence obtained through an illegal search, our criminal defense team can work to have the illegally obtained evidence excluded from your criminal case. While the exclusion of incriminating evidence does not mean your case will be dismissed, it can make it more difficult for the prosecuting attorney to secure a conviction and could lead to a significant reduction in the severity of the charges or the penalties you could face.

Just Criminal Law was founded by Christina L. Williams, a former prosecutor in Campbell County, Wyoming. She has assembled a top-tier criminal defense team that has the knowledge, skills, and experience to critically evaluate the charges against you and mount a vigorous defense designed to win at trial or force the prosecuting attorney to agree to a significant reduction in the charges against you or even dismiss your case. To put our expertise to work for you, contact Just Criminal Law today.

How to Obtain a Search Warrant

To obtain a search warrant, the police must prove to the judge they have probable cause to believe you committed a crime. Before ruling on a request for a search warrant, the judge can require that the applicant and any witnesses appear in person. The proceedings must be recorded by a court reporter. A judge can also issue a search warrant based on information communicated by telephone or other electronic means. In this case, the judge must place the applicant and any witnesses under oath.

Once the judge issues a search warrant, the warrant shall be directed to “any peace officer authorized to enforce or assist in enforcing state law.” The warrant “shall state the grounds or probable cause for its issuance and the names of the person whose affidavits have been taken in support thereof” and “must identify the person or property to be searched, identify any person or property to be seized, and designated a judicial officer to whom it must be returned.“

Execution of the warrant must be initiated within a specified time not to exceed 10 days, and it must be executed during the hours of 6 am and 10 pm unless the warrant expressly authorizes it to be executed at another time.

The police officer who executes the search warrant must enter the exact date and time it was executed and must prepare and inventory an inventory of any property seized.

When Is a Search Warrant Invalid?

The requirements for obtaining a search warrant are strict. If the police failed to follow the procedure for obtaining a search warrant, the search should be declared invalid, and evidence obtained in the search should not be considered in the case against you.

A search warrant could be declared invalid if:

• The affidavit used to obtain the warrant was incomplete;
• The police used illegally obtained evidence to obtain the warrant;
• The evidence is “stale” because the police waited too long to request the search warrant; or
• The search warrant was based on an unreliable witness.

Understanding Search Warrants and the Exclusionary Rule

If the search warrant was invalid or the police should have obtained a warrant but conducted a search anyway, evidence obtained from the unlawful search should not be considered at trial. Our criminal defense team can prepare and file a Motion to Suppress Evidence requesting that the illegally obtained evidence be excluded from your case. If your Motion to Suppress Evidence is granted, the excluded evidence cannot be considered.

Having illegally obtained evidence does not always mean your case will be dismissed. But, it will make it more difficult for the prosecutor to secure a conviction and can pave the way for a plea bargain to reduced charges or reduced penalties.

Exceptions to the Search Warrant Requirement

There are notable exceptions to the search warrant requirement which create situations when the police are not required to obtain a search warrant.

Consent

Police do not need a search warrant if the suspect consented to the search.

Plain View

Police are not required to obtain a search warrant when evidence of criminal activity is in “plain view,” meaning the police officer can see evidence of criminal activity without conducting a search. For example, suppose a police officer walks by your window and sees illegal drugs on your table. No warrant is required because evidence of illegal activity is in plain view.

Search Incident to Arrest

Police do not need a warrant to search the area in the immediate control of a suspect when placing them under arrest. This exception to the warrant requirement is intended to protect officer safety by allowing the officer to identify potential threats by conducting a “protective sweep.”

Stop and Frisk

Police do not need a warrant to conduct a Terry stop, when they frisk someone they believe is unlawfully carrying a firearm. Evidence obtained during a Terry stop is admissible even though the officer did not have a search warrant.

Exigent Circumstances

Police can conduct a search without a warrant if obtaining a warrant would compromise public safety or result in the destruction of evidence. Classic examples of exigent circumstances include a suspect who would flush drugs down the toilet, when a person is in danger, or if the police are in “hot pursuit” of a suspect.

No Fourth Amendment Protection

The Fourth Amendment does not apply to private citizens. A private citizen like a security guard who conducts a search may be violating other laws, but they have not violated the Fourth Amendment. Fourth Amendment protections only apply to government agencies.

Just Criminal Law: Aggressive Defense Against the Most Serious Criminal Charges

Careful analysis of the validity of a search is a crucial element of a successful criminal defense strategy. If you were charged with a crime based on illegally obtained evidence, contact our criminal defense team as soon as possible. We will carefully analyze the evidence against you and challenge the validity of the search warrant and the legality of the search.

When your freedom hangs in the balance, you need experienced and aggressive legal representation. Contact Just Criminal Law today to schedule your personalized case review and strategy session.

DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.