CHALLENGING A SEARCH WARRANT

March 8, 2018

Imagine the familiar scene from so many television cop shows: the police come knocking at your door with a search warrant. They enter your home and begin searching through all of your rooms and belongings. As a result of this search, the police recover an amount of illegal drugs and cash from a bedroom. Now you are charged with possession with intent to distribute these drugs. What can you do now?

It may seem like a hopeless cause when the police acted under the authority of a search warrant, but that does not mean that you don’t have any defenses. The right to be free from unlawful search and seizure is one of the most highly regarded rights derived from our United States Constitution. The Fourth Amendment provides that people should be secure in their houses and other personal effects. Searches are only acceptable under certain circumstances.

When a judge has issued a search warrant based on probable cause, the search is generally deemed reasonable. But, there are a variety of requirements that must be met for the issuance of a search warrant. Each of these requirements presents an opportunity to challenge the validity of the warrant.

An application for a warrant must include a signed and sworn affidavit of a law enforcement officer presented to a neutral and detached magistrate. The affidavit must establish the probable cause for the search. Probable cause exists when there is reason to believe that a criminal offense has been or is about to be committed. This may be established through facts and circumstances within the officer’s knowledge, but must be more than a mere suspicion of the officer. In addition to probable cause set forth in the affidavit, there is also a particularity requirement. That is, the warrant must particularly describe, with sufficient detail, the person or place to be searched.

If a search warrant is deficient in any one of these requirements, the entire warrant may be invalid, resulting in the police having conducted an illegal search. It is essential to consult with an experienced criminal defense attorney to assist with your case and any potential challenges and defenses to a search warrant executed at your home.

Source: Findlaw.com, The Fourth Amendment Warrant Requirement, accessed March 04, 2018.

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