Search warrant requirements

Search Warrant Requirements

3. Search Warrant Requirements When a search occurs, a warrant serves to protect a person's privacy interests against unreasonable governmental intrusion. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized. Warrantless searches are per se unreasonable unless the search satisfies one of seven exceptions to the warrant requirement.

Probable cause

a. Probable cause Facts supporting probable cause may come from any of the following sources: i) A police officer's personal observations; ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches. 1) Right to attack truthfulness of affidavit Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause. A defendant can challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and ii) The false statements were necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154 (1978). 2) Informants Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

Particularity

b. Particularity A search warrant must describe with particularity the place to be searched and the objects to be seized. United States v. Grubbs, 547 U.S. 90 (2006). Warrants that, in addition to describing specific documents to be seized, also refer to "other fruits, instrumentalities and evidence of the crime at this [time] unknown" are not converted into illegal general warrants by the inclusion of such language. The reference to a "crime" has been interpreted as being limited to a particular crime (e.g., false pretenses), rather than any crime. Andresen v. Maryland, 427 U.S. 463 (1976). A warrant need not specify the manner of its execution.

Anticipatory warrant

c. Anticipatory warrant Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Grubbs, supra.

Third-party premises

d. Third-party premises A search warrant may be issued to search the premises of a person who is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).