Search Warrants and The Fourth Amendment
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The Fourth Amendment mandates that citizens shall be free from deemed
unreasonable, and therefore unconstitutional, is determined by the particular
facts and circumstances of each case. However, some hard and fast rules do
provide guidance. First and foremost among these is the core principle that all
searches, unless conducted pursuant to a warrant, are per se unreasonable,
The Search Warrant
The Fourth Amendment requires that a search warrant be issued by a
magistrate or judge who must, after receiving an oath or affirmation from the
warrant applicant, make an independent, neutral and detached determination
whether probable cause exists to believe that particularly described property
will be found at a particular place. When applying for a warrant, an officer
must present an affidavit that contains facts that support a finding of
“probable cause.” Cal. Pen. Code §1527. The warrant and the affidavit or
testimony on which it is based must be legally sufficient, i.e., they must
contain facts that show a crime was committed, and facts that indicate why
evidence will be found in a given place. Cursory assertions and bare-bones
allegations will not support a warrant.
The warrant must be issued by a removed, impartial judge. This requirement
is premised on the notion “that a warrant authorized by a neutral and
detached judicial officer is a more reliable safeguard against improper
searches than the hurried judgment of a law enforcement officer engaged in
the often competitive enterprise of ferreting out crime.
The probable cause standard for issuance of a search warrant is essentially
the same as that for arrest, the difference being that police must have
probable cause to believe that a crime has been committed, and they can find
certain evidence in a particular place.
If there is an appreciable delay between the occurrence of the circumstances
that create probable cause and the time a warrant is issued, the facts
supporting the probable cause determination may become “stale,” in that
although the alleged facts may once have supported a probable cause
determination, presently they may not do so. Courts reason that information
demonstrating evidence of a crime once could be found in a given location
does not mean that evidence of a crime necessarily may be found there now.
Stale information creates the mere suspicion crime has been committed, and
does not rise to the level of probable cause.
A violation of the law pertaining to a search warrant could result in a
dismissal of the criminal case or charges.
References of Law provided by Lexis-Nexis.
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