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
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months, the warrant is usually no longer valid.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.