4A: Search warrants

Question 1

Search warrants: requirements

Answer 1

Generally, the government needs a search warrant to conduct a search if there is a reasonable expectation of privacy. A search of a suspect’s home without a warrant is per se unreasonable unless a warrant exception, such as consent or exigent circumstances, applies.

A warrant must meet three requirements for it to be valid and to avoid exclusion of evidence seized pursuant to the warrant:

(1) It must be issued by a neutral magistrate;
(2) It must be based on probable cause to believe that the items sought are the fruits, instrumentalities, or evidence of crime; and
(3) It must describe with particularity the property and place to be searched.

Question 2

Search warrants: wiretapping

Answer 2

Wiretapping requires:

(1) Probable cause and a warrant;
(2) Specific identification of whose conversations are to be intercepted;
(3) An end date for the warrant; and
(4) Minimization by the wiretapper.

Question 3

Search warrants: probable cause

Answer 3

Facts supporting probable cause may come from several sources, including information from a reliable, known informant, or information from an unknown informant that can be independently verified.

A search warrant solely based on a tip from an unknown informant is invalid for lack of probable cause.

Question 4

Search warrants: anticipatory warrants

Answer 4

An anticipatory warrant is not unconstitutional simply because the items to be seized are not located on the premises to be searched at the time that the warrant is issued.

The probable cause requirement is satisfied where, 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.

Question 5

Search warrants: persons not named in the warrant

Answer 5

Independent justification is needed to search persons not named in a search warrant.

Mere proximity to a named person does not supply such justification.

Question 6

Challenging a facially invalid warrant

Answer 6

A defendant can successfully 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 (the officer) knowingly, intentionally, or with a reckless disregard for their truth; and
(ii) the false statements were necessary to the finding of probable cause.