Search Warrants - Requirements for Issuance
The warrant requirement for searches and seizures of people and objects is an important check on the power of government to intrude in the private lives of individuals. Although in certain special circumstances, such as when the officer witnesses a crime in progress, law enforcement officers may search premises without first obtaining a warrant, those circumstances are the exception. In general, law enforcement officers must first obtain a warrant before searching a home, business, vehicle or other premises. A search warrant may be issued only by a neutral, disinterested magistrate.
Search warrants require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements. A judge may issue a search warrant only after reviewing a sworn statement of facts showing probable cause to search a particular place for particular items. The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime.
Elements of a Search Warrant
A "search warrant" consists of:
- The warrant itself (the court order authorizing the search); and
- The application for the warrant (a sworn affidavit of facts supporting the request).
Items That May Be Searched and Seized
Upon a finding of probable cause, a judge may authorize a search warrant to search for and seize property that:
- Is obtained or possessed in a manner that is a criminal offense;
- Is or has been used, or is intended to be used, as the means for committing a criminal offense; or
- Would be material evidence in a criminal prosecution.
Standard for Probable Cause
The judge must find from the affidavit probable cause to believe that the place to be searched contains items connected with criminal activity. Probable cause means substantial evidence, which may be based entirely or partly on hearsay. Hearsay is information that comes from a third person, meaning someone other than the person who reports and swears to the information in an affidavit, and the information is offered as true. The judge must conclude independently, from the facts presented in writing in the affidavit, that probable cause to conduct the search is present. It is not sufficient for the judge simply to accept the conclusions of the person making the affidavit, or of the sources cited in the affidavit, no matter how honest or reliable these may appear.
Contents of an Affidavit (See Forms – Affidavit)
An affidavit is a sworn statement, nearly always prepared by a police officer. The officer may describe his or her direct observations and reasons for wanting to conduct a search. The affidavit also may contain information provided to the officer by a third person called an informer or informant. This type of information is hearsay if offered as true. The identity of the informer may be revealed in the affidavit or may be kept confidential.
Evaluation of Hearsay Evidence
If probable cause is based on hearsay, the judge must use a two-part test to evaluate the trustworthiness of the hearsay. Both of the following elements must be established by substantial evidence:
- "Veracity" of the informer. This means the informer providing the hearsay must be credible. The affidavit must contain sufficient facts indicating the informer is believable or truthful. For example, the affidavit should state the reasons why the informer believes that the seizable items are located in the place to be searched and the reasons why the police officer believes that the informer is reliable.
- To satisfy the veracity test, the affidavit must establish that: (a) the informer is a truthful person; (b) the informer has a particular motive to be truthful about the specific allegation (for example, it is against the informer's interest); or (c) the allegations of criminality are sufficiently corroborated.
- "Basis of knowledge" of the informer. This means that the informer has a factual basis for the information furnished. The affidavit must contain sufficient facts indicating the basis for the informant's knowledge. For example, the affidavit should describe the accused's criminal activity in sufficient detail for the judge to determine that the allegation is something more substantial than casual rumor.
- To satisfy the basis of knowledge test, the affidavit must establish that: (a) the informer gathered the information of illegal activity in a reliable fashion; or (b) the informer's information is based on either personal knowledge or on reliable hearsay received by the informer.
See the hearsay exercises for practice in evaluating hearsay evidence.
Identity of an Informer
Informers whose identity is provided in the affidavit are called citizen informers. A citizen informer is a person who is a victim or witness of a crime, who is motivated by good citizenship, and who acts openly in aid of law enforcement. Citizen informers generally are presumed to be truthful. Anonymous callers to crime-stoppers have no presumption of truthfulness; their veracity must be established the same way as for other informers.
Informers whose identity is not revealed in the affidavit are called confidential informers. An affidavit should contain reasons why the identity of an informer is concealed. There is no presumption that a confidential informer is reliable. A statement in the affidavit that a confidential informer provided accurate information in the past is not in itself a sufficient indication of the informer's current reliability.
Use of Current Information
An affidavit must present timely information. The facts must indicate "present probable cause."
Time Requirement for Ruling
The judge should respond to search warrant applications as promptly as circumstances permit and avoid unreasonable delays. Although the proceeding is ex parte (one-sided) and often arises with no notice, the judge should proceed with as much care, deliberation and concern for judicial propriety as in any other matter.
Obtaining Additional Evidence
Before ruling on the warrant application, the judge may require the person swearing to the affidavit to appear and may question him/her under oath, along with any witnesses produced. This additional evidence must be put in writing and served with the warrant. The judge may not consider evidence that is not sworn to as part of the affidavit.
Questionable Probable Cause
When uncertain whether probable cause exists, the judge may decline to issue the warrant.
Contents of a Search Warrant (See Forms -- Affidavit)
The search warrant must:
- Either contain or have attached the affidavit showing probable cause for its issuance;
- Indicate the name of the person swearing to the affidavit;
- Describe with particularity the person or the place to be searched and the items to be seized; and
- State that it shall be served between 6 a.m. and 10 p.m. unless the judge, for reasonable cause, authorizes its execution at another time
Execution of a Search Warrant
A search warrant must be executed within ten days from the date of its issuance. The person whose property is seized or searched must be given a copy of the search warrant, including the affidavit, and an inventory of any property taken.
Consequences of Improper Search Warrant Issuance
Sources: Hermann, Michelle, Search and Seizure Checklists, Clark Boardman Company Ltd. (1990); Guidelines for the Issuance of Search Warrants, American Bar Association Criminal Justice Section (1990); BNA Criminal Practice Manual.