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Criminal Law & Procedure: Arrest & Search Warrants (a brief overview of the Fourth Amendment)

Posted by Jonathan Gasso | Jun 02, 2020 | 0 Comments

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

The 4th Amendment Specifically states, “no Warrants.. but upon probable cause, supported by Oath or affirmation.” To obtain a warrant,

  • the information presented is usually presented with sworn affidavits,
  • Information supporting issuance of a search warrant must be disclosed to the Issuing Judge at the time of the application for a search warrant, and
  • The Judge issuing the arrest or search warrant must possess the ability to be neutral, detached, and capable of determining whether probable cause exists.

You can challenge the sworn information used to issue your arrest by showing the statements in the affidavit(s) are

  1. NOT sufficient to prove probable cause or
  2. by showing some or all the statements in the affidavit(s) are false.

Probable Cause: Probable Cause is established by the totality of the circumstances. For arrest warrants to be issued, the government must establish

  1. a fair probability a crime has been committed
  2. AND the person on the warrant committed the crime.

For Search Warrants, the government must show

  1. a fair probability the specified items sought are evidence of criminal activity
  2. AND those items are presently located at the specified place described in the search warrant application.

You can challenge the finding of probable cause by proving the information used to issue the warrant is stale. Staleness may be determined by the length of time between discovery of the probable cause information AND,

 1) the time the warrant was sought,

2) the nature of the crime evidence sought,

3) the location of the evidence,

4) the condition in which the evidence was observed, and

5) the nature of the place to be searched.

The Particularity Requirement:

“No Warrants Shall be issue,

BUT upon Probable Cause….

AND Particularly Describing the place to be searched,

AND the persons or things to be seized.”

What does the Particularity Requirement mean for a Person Seized?

  1. The Arrest Warrant MUST state the name of the defendant

OR

  1. Describe the Defendant with information by which he or she may be Identified with Reasonable Certainty.

What does the Particularity Requirement mean for Things to be Seized? How specific MUST a description be?

  1. It does not have to be that specific.
    1. A description of contraband like “drugs” is sufficient.
    2. HOWEVER, a statement such as “stolen property” is too general.

What does the Particularity Requirement mean for Places to be searched?

  1. Whether the description is so specific that
    1. it identifies only the premises intended to be searched,
    2. and no other place,
    3. using street numbers, geographic indicators, apartment numbers, city, county, State locations, and legal property descriptions

To recap, Warrants

  1. protect our privacy against random acts of government agents.
  2. are limited in scope and its objectives.
  3. provide the detached and neutral scrutiny of a neutral judge.
  4. Force the government to establish a fair probability specified items mentioned in the warrant are evidence of criminal activity and that those items are presently located at the specified place described in the search warrant application.

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