What is a search warrant?
A search warrant is an order in writing, commanding a peace officer to search a particular person or place for specific listed items and return them to court. Right off the bat, note that a warrant only allows the police to search. A citizen cannot obtain a search warrant. Although a warrant is typically issued in writing, the police can get a telephonic warrant that is later followed up (following applicable statutes) with a written document and a recording of the proceedings in obtaining the warrant. A search warrant is preferred in court, as a search done pursuant to a warrant is presumed to have been a valid, legal search. Without a warrant, the police (and prosecution) would have to justify any search. They would have to prove consent, exigency or one of the recognized exceptions to the necessity for a search warrant.
The police must establish probable cause to search. That means they must demonstrate, based on the facts and information they know, that evidence of criminal activity exists in the location where they want to search. They must demonstrate a “fair probability” or a “reasonable chance” that the evidence is where they want to search. It’s less than absolute certainty, but more than just a hunch. The bottom line is the judge has to be persuaded that the conclusions and request to search is reasonable.
What can they do with a warrant that they couldn’t otherwise? Intrude upon a person’s reasonable expectation of privacy and search. It’s essentially judicially authorized probable cause and permission to search.
How do the police obtain a warrant?
Under the Fourth Amendment of the US Constitution, a search cannot be done except upon probable cause. To obtain a warrant, the police must submit their information under oath to the magistrate (aka judge). The officer must describe in an affidavit what their probable cause is.
Let’s use an example of a typical drug search warrant. Let’s say a patrol officer arrests somebody for possession of drugs. That person provides information about their dealer. The officer could use that information and do their own surveillance of the suspected dealer’s house to see if there is a typical pattern of activity consistent with narcotics dealing (heavy foot traffic, visits that only last a few minutes, known drug users frequenting the location, etc.). Or – the officers could send in an undercover officer to buy from the location or use an informant to go buy from the suspected dealer.
The would then use all that information in their application for a search warrant.
First – they would have to have a legal basis for a search warrant. In California, there are only certain categories (Penal Code 1524) under which an officer could obtain a warrant. Some examples are: Evidence of a felony exists; evidence relating to child exploitation, a search for stolen property. The affiant that is swearing out the warrant to the judge then would describe their training, education and experience that is relevant to the case. In our hypothetical drug search warrant, the officer would describe their training in the academy, any additional narcotics courses, search warrant courses, etc. They would also include their experience in drug cases – the number of cases, arrests, etc. They would also include what sort of things they have learned in that experience. For example through talking to persons arrested for selling drugs, they may have learned how drugs are packaged, sold, cut, manufactured, hidden, etc. Once they establish their background, they would then describe what information they have that leads to the request to search.
In our example, they would lay out [and some of this may be done in a sealed or secret portion so as to protect identities] the information they got from their snitch, what they did in response, the undercover buy…. everything that leads to their conclusion that they believe they’re going to find drugs possessed for sale at the target’s house.
That’s a basic overview of search warrants and how the police get them. If you’re the subject of a criminal investigation or the police searched your house with (or without) a warrant, it’s time to get a lawyer. In Orange County, call me to set up a confidential consultation to discuss your case and your options.