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The Law of Search Warrants

The Law of Search Warrants. Where do the search & seizure rules come from?.

mark-joyce
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The Law of Search Warrants

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  1. The Law of Search Warrants

  2. Where do the search & seizure rules come from?

  3. 4th Amendment to U.S. Constitution: no “unreasonable” searches & seizures; warrants must be supported by probable cause on oath/affirmation & specifically describe what is to be searched & persons or things to be seized N.C. Constitution: no “general warrants”

  4. What Happens When The Law Isn’t Followed?

  5. What Happens When The Law Isn’t Followed? Evidence may not be admissible Possibly civil & criminal penalties for officer Rights are violated

  6. Five Skills to Acquire in This Session: Determine whether a warrant should issue Determine the necessary facts & state them in the application Write a description of what the officer will search for

  7. 4) Write a description of who/what/where will be searched 5) Use proper search warrant procedure

  8. 1. Determine if Facts Justify Issuance of a Search Warrant • Must establish PC • Fair probability that the object of the search is in the place to be searched • More than reasonable suspicion; less than proof beyond a reasonable doubt

  9. Consider all of the circumstances • Watch out for timeliness! • Can give a search warrant even if another magistrate has said no • Reliable hearsay is OK • Know rules about confidential & anonymous informants . . .

  10. Confidential Informants

  11. Confidential information can be enough for PC if you can establish (1) the informant’s credibility and/or the reliability of the information AND (2) the informant’s basis for the information

  12. Confidential information can be enough for PC if you can establish (1) the informant’s credibility and/or the reliability of the information AND (2) the informant’s basis for the information 

  13. Establishing credibility/reliability of information: “I’ve used this informant 3 times & got convictions each time” “I corroborated the info. in the following ways” “The informant admitted involvement in the crime”

  14. Confidential information can be enough for PC if you can establish (1) the informant’s credibility and/or the reliability of the information AND (2) the informant’s basis for the information 

  15. Establishing the basis for the information: Find out how the informant got the information : it must be more than rumor Examples: Informant saw drugs; informant overheard discussion about robbery

  16. Anonymous Informants • Rule: Anonymous information alone is not enoughto establish PC • Can help to establish PC if corroborated with reliable information

  17. 2. Draw Out & State Facts that Establish Probable Cause • Think: who, what, where, when, why • If CI, establish reliability of informant/information & basis for knowledge

  18. Don’t accept conclusions • No set rules for PC statement • Anticipatory warrants

  19. 3. Write a Description of the Property/Person Sought • Property/person must be identifiable • Want to prevent mistaken seizure of legal goods

  20. Be descriptive! • The more common the property, the more detail needed

  21. For illegal contraband, you need not be as detailed “Heroine” is O.K. Amount not needed for drugs

  22. For people, • Give name & description; • If name unknown, give description

  23. Search of crime scene Sample description: fingerprints, blood, fired & unfired bullets & casings, footwear impressions, trace hair & clothing fibers & any & all evidence that may relate to the suspected murder

  24. 4. Describe What is to Be Searched • Must describe what is to be searched • Want to avoid searching the wrong place/person

  25. If it’s a premise • state possessor (2) give street # & description; (3) if an apartment, give apt. #; (4) if it’s a rural address, give directions; (5) separate warrant for separate premises

  26. If it’s a person, include name & description

  27. If it’s a vehicle, include model, make, year, color, license tag, etc.

  28. If it’s other items, such as luggage, give description

  29. Final rules: • Only complete a warrant for a place in your county • Don’t stop at “premises” if there’s PC to search elsewhere • If outbuildings are to be searched, list them

  30. 5. Search Warrant Procedure • Examine application • Put the applicant under oath/affirmation & examine about the facts

  31. If there are additional facts • add them to the application, (2) tape-record testimony & file the recording w/warrant & application, or (3) reduce testimony to writing on a separate paper & file it w/warrant & application

  32. If information won’t fit on the form, attach separate papers • Attach affidavits to the application

  33. Determine whether there is PC • Check description of what is to be searched • Check description of property/person to be searched for • Get signatures • Complete the search warrant portion on other side • Put time and date

  34. Original & 1 copy to the officer; file copy with clerk • Must execute w/in 48 hours • Officer leaves a copy at the premises; returns copy to clerk

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