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How do I fight a search warrant?

Posted By Berry Law Firm || 2-Mar-2017

First, police need to describe the person to be searched, the items to be seized, and the time during which the search will be conducted. Sometimes police get a warrant that is invalid because they fail to adequately describe what it is they intend to search or seize. A good criminal defense lawyer will look at both the description of the place to be searched and the items police intend to seize. During the execution of the warrant, if police unlawfully search and seize property outside of the scope of the warrant, that evidence may be excluded from trial.

For example, police may get a search warrant to search a house for guns. During the search, the officers go into the home and find a letter sized envelope on the owner’s desk. Police then open the envelope and find a small amount of methamphetamine. The search of the envelope is illegal because cops could not have reasonably believed they would find a gun in the small envelope. The criminal defense attorney will move to suppress the evidence because it was illegally obtained.

The time of day or night the warrant is executed is also important. If police get a warrant to search during the day, but wait until night time to search, the search is illegal because it is executed outside the time allowed in the warrant. Similarly, there are knock and no knock warrants. Unless the warrant specifically says police do not have to knock, police must knock prior to entry. Searches are unlawfully executed when police bust through a door without knocking unless the warrant has a no knock provision.

For criminal defense lawyers time is also important in another regard. The warrant cannot be stale. For example, if law enforcement gets a warrant to search a house for marijuana, but fail to execute the warrant for several months, the warrant is usually no longer valid.

Stale information is also problematic if the warrant is based on probable cause that has grown stale. For example, police investigation of a marijuana conspiracy case may take time to develop. Even if police have reason to believe a person is selling marijuana they may want to wait to act so they can snare as many criminal defendants as possible. The problem occurs when police wait several months to get the search warrant because they are hoping to develop a stronger conspiracy case and nothing happens. At this point, the information police had that could have been used to get a warrant months ago is stale. If the probable cause (or factual reasons for the search) is stale, then a warrant obtained based on those facts may be invalid.

So what facts do police have to allege to get a search warrant? Cops must establish probable cause to get a search warrant. Probable cause is evidence that would lead a reasonable person to believe that a crime has been or is being committed and that the items to which the search is being directed are located in the area described. This is known as a probable cause affidavit and police must swear to its accuracy.

Law enforcement must show that the probable cause affidavit contains more than mere conclusions and instead present facts so that the magistrate can make an independent evaluation of the probable cause. Once the magistrate receives the warrant and the affidavit, the document must be issued by an objective magistrate. The magistrate must find probable cause to believe that the place to be searched contains items alleged by police to be in connection with criminal activity.

In cases where law enforcement makes specific allegations of deliberate or reckless material false statements in an application for a search warrant, the evidence may be suppressed, which means it will not be allowed at trial. This is known as a Franks violation.

At Berry Law Firm, we have been involved in cases where law enforcement illegally obtained evidence through a faulty search warrant and the evidence was excluded from trial. In some of these cases when the evidence was excluded, the prosecutor dismissed the case. In other cases, the prosecutor took the case to trial even though key evidence was excluded.

If you are the victim of an unlawful police search or seizure, your Fourth Amendment Rights may have been violated. Contact Berry Law Firm today.