Our law demands that searches and seizures of property and people must be reasonable and based on probable cause, not mere suspicion. Actually, the 4th Amendment is pretty specific, stating that no warrant shall issue without probable cause. Therefore, when the police need to cross the line to invade a person’s reasonable expectation of privacy they must have a properly signed search warrant in hand.
A search warrant is actually the combination of three documents—an affidavit, the warrant itself, and a return of service.
The affidavit for a search warrant is the portion of the warrant stating the facts (probable cause) as to why permission to search a particular place, or person, should be allowed.
Affidavit for search warrant
In other words, the affidavit sets the grounds for issuing the warrant portion of the document. An officer must state (under oath) that the facts provided in an affidavit are the truth.
The four corners of a warrant refer to the actual paper itself and to everything written within the physical “4 corners” of the document. If a statement, fact, etc. is not included within the affidavit, the information may not be considered as part of the probable cause for issuing the warrant.
The search warrant is basically a court order to search a specific place for a specific item(s).
The “return” is simply the portion of the document (copies of the affidavit, the search warrant, the inventory list of items seized, and the official portion of the document stating the time and place of service and the signature of the serving officer.
Inventory and return
Probable cause is present “where the facts and circumstances presented would warrant a man of reasonable caution to believe that the items sought to be seized were in the stated place.”
To determine whether or not to issue a search warrant, a magistrate/judge only needs to ask himself/herself one question. Would a reasonably cautious person conclude that there was a “substantial basis” for the finding of probable cause? If the answer to the question is “yes,” then he/she may issue the warrant.
Information presented as probable cause must be current information that exists at the time the request is made for the warrant. For example, an officer may not request a search warrant based on activity she observed 30 days in the past.
Say NO to Those Anonymous Tips!!
Hearsay evidence may not be used to obtain a search warrant. I see this used all the time in books—the officer receives an anonymous tip regarding evidence hidden in a car or home, so the cop drives over and starts searching based on the tip. Doing so would definitely be an illegal search.
In addition, a search warrant would not, nor could it be issued based on “anonymous tip” we so often read about in some novels. Even when using information provided by an informant, officers must first establish the informant’s credibility. Has he supplied reliable information in the past? If so, how many times? Have the details of his information been verified by reliable sources, such as another police officer or person in good standing?
What information is needed within the 4 corners of the documents?
1. Place to be searched. The description of a location must be so precise that it would rule out any other place.
2. Person to be searched. Again, the warrant must be specific as to which persons are to be searched. Having a search warrant in hand does not allow a “search everyone” free-for-all for officers. However, officers may, for their safety, “pat down” everyone in the area. This is a search for weapons only.
3. Property to be seized. Once again, the warrant must be specific, and an officer’s search must be limited to searching for the items listed within the 4 corners of the warrant.
For example, if the warrant directs officers to search for a stolen refrigerator, then he may not search dresser drawers in the bedroom. Obviously, something as large as a refrigerator could not be concealed in a small drawer. However, if the officers are looking for a stolen diamond ring, then they may search anywhere within the house where a tiny ring could be hidden. Officers may seize any other illegal items found during the search, such as illegal narcotics.
In most instances, officers are required to “knock and announce” their presence when serving a search warrant. This means they don’t kick in the doors like you see on TV. Not at first, anyway. If the suspect does not answer the door within a reasonable amount of time (there is no set timeline, merely what the officer feels is reasonable at the time), then the door may be breached by whatever means is necessary to ensure the safety of the officers and to protect and preserve the evidence. Also, warrants are normally required to be served during daytime hours unless otherwise stated on the warrant (day or night).
When safety is at risk, officers may ask the judge/magistrate to issue a “No Knock” warrant, which allows them to break and enter the residence, hoping to catch the suspect(s) off guard. This is normally done when it’s suspected that the crooks are armed, or that they may destroy evidence before the officers could gain entry by first knocking and announcing their presence.