Search Warrant Requirements
The Fourth Amendment assures us that we have the right to be secure in our “persons, houses, papers, and effect from unreasonable searches and seizures.” Except when numerous exclusions may apply, the State must obtain a valid warrant to perform a lawful search. While this is elementary and the mechanics in getting a warrant are not difficult, you’d be surprised at how frequent an issue revolves around the validity of a search warrant.
The search warrant requirements –
- The search warrant may be issued by any court – except for probate court – in the jurisdiction in which the person or property is to be searched.
- The search warrant may be issued for the following reasons: (a) the property or things were stolen or embezzled; (b) the property or things were used as the means of committing a crime; (c) the possession of the property or things constitutes a crime; (d) the property or things are in the possession of any person with the intent to use them as a means of committing a crime, or the property or things so intended to be used are in the possession of another to whom they have been delivered for the purpose of concealing them or preventing their being discovered; or (e) the property or things to be seized consist of any item or constitute any evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.
- The search warrant can only be issued upon a finding by the court of probable cause, supported by an affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched. The affidavit must set forth the facts establishing probable cause.
- If the court is satisfied that probable cause exists to search the person, property, or thing, the judge must issue a signed search warrant, naming the judge’s judicial office, to an officer inside or outside the officer’s jurisdiction. The warrant shall direct the officer to search the person or place named for the property or things specified, and to retain the property or things in the officer’s custody subject to order of the court issuing the warrant. The warrant shall contain the names of the persons presenting affidavits in support of the application, and the grounds for its issuance.
- In executing the search warrant, it must be done by any of the officers mentioned in the warrants directions and by no other person, except in aid of the officer on the officer’s requiring it, the officer being present, and acting in its execution.
- A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.
- The search warrant is void if not executed within 10 days.
- When the officer conducts the search, he/she must give a copy of the warrant and, when property or things are taken, a receipt to the person in whose possession the premises or the property or things taken were found. The officer must immediately return the warrant to the court and deliver to it a written inventory of the property or things taken, verified by the certificate of the officer at the foot of the inventory.
With the process being so detailed, you can see why officers often misstep. And, if an officer does misstep, the consequences can be significant for a defendant, including an outright dismissal of the entire case.