A License to Search: Requirements of a Valid Search Warrant
UPDATED: February 6, 2012
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The Constitution protects all Americans from unreasonable search and seizure of property by law enforcement. To make this principle a reality, every state has established general rules setting out how search warrant documents and supporting affidavits for warrants are to be written. Even though the specifics vary slightly by state, the basic requirements of a valid warrant and supporting affidavit are usually the same.
The Search Warrant Affidavit
Before a warrant can be issued, a law enforcement office must prepare a written search warrant affidavit and swear to the facts contained within the affidavit. The affidavit must meet certain descriptive and substantive requirements, and must allege sufficient facts to justify entry into a person’s home, business, or automobile. This substantive requirement is frequently referred to as establishing probable cause. Law enforcement agents are not allowed to go look through your property just because they want to. They are required to establish a link between the property to be searched and the commission of some crime.
The information relied upon to establish probable cause cannot be based solely on stale facts. Law enforcement can include old information, but a warrant for a valid search must state new or recent facts. All of the information included must be based on credible or verified sources. The police cannot simply base the search warrant on hearsay or rumors.
The affidavit must also specify the evidence that the police would like to look for and the places they would like to search. Warrants are not to be used as a license to search for anything and everything. If the affidavit alleges the commission of a drug offense, then law enforcement can go look for evidence of drug possession or trafficking. To gain access to a computer, the officer would have to obtain a separate warrant to justify an investigation of this particular search area. The place to be searched also has to be described in detail. This requirement is designed to reduce the possibility of the wrong house being searched. Some affidavits will simply list a street address, but to prevent issues associated with typos in house descriptions, many affidavits will include more descriptors like a physical description of the property and directions on how to find the house.
Search Warrant Affidavit Requirements to Issue a Valid Search Warrant
After preparing the search warrant affidavit, law enforcement must present the affidavit to a judge to approve the issue of a warrant. As the judge decides to grant or deny the issuance of the warrant, she must base her decision on the contents of the affidavit. Like the affidavit, the search warrant must be in writing, it must sufficiently describe the place and items to be searched, and it must demonstrate that probable cause exists for the search. The judge must also sign the warrant to ensure validity.
Search warrants often seem generic and lacking in detail, but this is because many warrants incorporate the affidavit by reference so that all of the requirements do not have to be repeated in the actual search warrant. As long as the warrant cross-references the search warrant affidavit, the judge does not have to restate all of the necessary components. If the warrant does not incorporate the search warrant affidavit, then it must list all the same elements as the affidavit, including a specific description of the place to be searched, the items to be seized, if found, and probable cause for the issuance of the search warrant.
Even defective warrants have been upheld as long as they offer sufficient compliance. For example, if the information contained within an affidavit is based in part on information from an unreliable informant, but the rest of the affidavit still establishes probable cause, then the warrant may be still be deemed valid. If you are concerned that a warrant used to search your property was issued in violation of your state’s search warrant requirements, contact a criminal law attorney and discuss filing a motion to suppress the illegally obtained evidence.