Introduction to Search Warrants




Among the numerous kinds of decisions made during a judicial career, the seemingly simple act of signing a search warrant may prove one of the most perplexing and consequential for the judge. With virtually no notice and only one side appearing in the courtroom or office, the judge confronted with a search warrant application must instantly determine whether the warrant and supporting affidavit satisfy the complex legal requirements for allowing authorities to search a residence, a business or a vehicle.

If the judge issues the search warrant when those requirements have not been met, then innocent citizens may suffer the intrusion and humiliation of an unlawful search of their premises, or evidence obtained from the search may be suppressed in court and a criminal may avoid prosecution or have a conviction overturned on appeal.

An error made during a trial or while ruling on a motion can often be corrected later or with a new trial. But the damage from an unlawfully authorized search may prove irreparable if a unique opportunity to catch a criminal with the evidence is lost, or if, as on rare occasions, an innocent citizen or officer is injured.

To protect the public against historical abusive searches by authorities, the founding fathers incorporated into the Fourth Amendment of the Bill of Rights the requirement that "no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Utah’s Constitution contains similar language in Article I, § 14.

Appellate courts have issued numerous decisions over the years on whether search warrants issued by judges have complied with these constitutional mandates. A set of rules has been developed, both in printed rules governing criminal procedure and in caselaw, defining when search warrants and their supporting affidavits are and are not adequate under these constitutional provisions.

These rules attempt to answer when a search warrant meets the three primary constitutional requirements:

  1. Is the warrant based upon probable cause?
  2. Is there a sufficient oath or affirmation?
  3. Does the warrant particularly describe the persons or property to be seized?

The answers to these questions can involve some very complex analysis of information and language presented to the judge at the time the warrant is requested. Appellate attorneys and reviewing courts may spend hours analyzing the significance of the words the judge was given only a few moments to consider in deciding whether to authorize the search. It is thus important that judges have ready access to resources that will assist them in making these determinations.

Goal of This Program
This Internet guide to search warrants is intended to serve as one resource for judges. It is designed to combine explanatory text with an interactive question-and-answer format addressing the most frequently occurring problems in this area of law. It is written in language that should be accessible to lawyer and non-lawyer judges alike, since many warrants are issued by magistrates. It offers a checklist that judges can review on the spot to determine whether applications meet legal requirements.

Because it is on the Internet, it is accessible twenty-four hours a day to the judge who has on-line capability, and can be updated almost instantly as new cases are published or new rules adopted. Putting this resource on the Internet also provides users with access to many related resources, including texts of rules and court decisions, as well as related text material.

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Page Last Modified: 7/8/2010
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