The Law of Search Warrants

Where do the search & seizure rules come from?

4th Amendment to U.S. Constitution: no “unreasonable” searches & seizures; warrants must be supported by probable cause on oath/affirmation & specifically describe what is to be searched & persons or things to be seized

N.C. Constitution: no “general warrants”

What Happens When The Law Isn’t Followed?

What Happens When The Law Isn’t Followed?

1)Evidence may not be admissible

2)Possibly civil & criminal penalties for officer

3)Rights are violated

1)Determine whether a warrant should issue

2)Determine the necessary facts & state them in the application

3)Write a description of what the officer will search for

Five Skills to Acquire in This Session:

4) Write a description of who/what/where will be searched

5) Use proper search warrant procedure

1. Determine if Facts Justify Issuance of a Search Warrant

Must establish PC

Fair probability that the object of the search is in the place to be searched

More than reasonable suspicion; less than proof beyond a reasonable doubt

Consider all of the circumstances

Watch out for timeliness!

Can give a search warrant even if another magistrate has said no

Reliable hearsay is OK

Know rules about confidential & anonymous informants . . .

Confidential Informants

Confidential information can be enough for PC if you can establish

(1) the informant’s credibility and/or the reliability of the information AND

(2) the informant’s basis for the information

Confidential information can be enough for PC if you can establish

(1) the informant’s credibility and/or the reliability of the information AND

(2) the informant’s basis for the information

Establishing credibility/reliability of information:

“I’ve used this informant 3 times & got convictions each time”

“I corroborated the info. in the following ways”

“The informant admitted involvement in the crime”

Confidential information can be enough for PC if you can establish

(1) the informant’s credibility and/or the reliability of the information AND

(2) the informant’s basis for the information

Establishing the basis for the information:

Find out how the informant got the information

: it must be more than rumor

Examples: Informant saw drugs; informant overheard discussion about robbery

Anonymous Informants

Rule: Anonymous information alone is not enough to establish PC

Can help to establish PC if corroborated with reliable information

2. Draw Out & State Facts that Establish Probable Cause

Think: who, what, where, when, why

If CI, establish reliability of informant/information & basis for knowledge

Don’t accept conclusions

No set rules for PC statement

Anticipatory warrants

3. Write a Description of the Property/Person Sought

Property/person must be identifiable

Want to prevent mistaken seizure of legal goods

Be descriptive!

The more common the property, the more detail needed

For illegal contraband, you need not be as detailed

“Heroine” is O.K.

Amount not needed for drugs

For people,

Give name & description;

If name unknown, give description

Search of crime scene

Sample description: fingerprints, blood, fired & unfired bullets & casings, footwear impressions, trace hair & clothing fibers & any & all evidence that may relate to the suspected murder

4. Describe What is to Be Searched

Must describe what is to be searched

Want to avoid searching the wrong place/person

If it’s a premise

(1) state possessor

(2) give street # & description;

(3) if an apartment, give apt. #;

(4) if it’s a rural address, give directions;

(5) separate warrant for separate premises

If it’s a person, include name & description

If it’s a vehicle, include model, make, year, color, license tag, etc.

If it’s other items, such as luggage, give description

Final rules:

Only complete a warrant for a place in your county

Don’t stop at “premises” if there’s PC to search elsewhere

If outbuildings are to be searched, list them

5. Search Warrant Procedure

Examine application

Put the applicant under oath/affirmation & examine about the facts

If there are additional facts

(1) add them to the application,

(2) tape-record testimony & file the recording w/warrant & application, or

(3) reduce testimony to writing on a separate paper & file it w/warrant & application

If information won’t fit on the form, attach separate papers

Attach affidavits to the application

Determine whether there is PC

Check description of what is to be searched

Check description of property/person to be searched for

Get signatures

Complete the search warrant portion on other side

Put time and date

Original & 1 copy to the officer; file copy with clerk

Must execute w/in 48 hours

Officer leaves a copy at the premises; returns copy to clerk