We generally have some idea of what a warrant is (a document that allows police to search and seize evidence or people). But what does it take to actually get a warrant?
Fourth Amendment Governs
The Fourth Amendment says no unreasonable searches and seizures are possible unless the police have a warrant supported by probable cause, and the officer's oath or affirmation that describes with particularity the persons or things to be searched or seized.
Probable cause is facts and circumstances that would lead a reasonable person to believe a crime was committed or is being committed. The police must have probable cause to get a warrant.
Oath or Affirmation
The police must swear, under penalty of perjury, the information is based on probable cause and is not being used to harass or otherwise subject a person to an unlawful search or seizure.
The police must demonstrate the above requirements with specificity. It cannot vaguely acquire a warrant simply by listing something along the lines of "a man in a white car."
Administered by a Neutral Magistrate
The police must present this information to a neutral and detached magistrate. The magistrate must not be paid for specifically issuing the warrant and must not have any interest in issuing the warrant.
If any of the elements are missing, a defendant can challenge the search or seizure in a suppression hearing. The prosecution will need to prove the elements existed or show some exception to the warrant requirement existed.
- Criminal Procedure, Joel Samaha, 2004
- Fourth Amendment
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