In the face of the recent execution of a search warrant at Mar-a-Lago, I get asked a lot of questions about search warrants. Search warrants are all unique; however, they do have some commonalities.
The Fourth Amendment to the United States Constitution identifies the criteria a lawful search warrant: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
So, two prongs – probable cause and description of the place to be searched and items seized.
As to probable cause, a police officer, or other official seeking a warrant, will establish probable cause by use of an affidavit (a written statement under oath) that is presented to a judge or magistrate (and satisfies the judge or magistrate) regarding the truth of the matters supporting probable cause. The affidavit must also describe with particularity “the place to be searched, and the persons or things to be seized.”
So, what is probable cause? “Probable cause” is defined as an officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur. See Carroll v. United States, 267 U.S. 132, 149 (1925). The probable cause may be established through witness statements and other evidence, including hearsay evidence (that would not be admissible at trial). Suspicion or belief is not sufficient.
As to the particularity prong, the warrant must describe the things to be seized. Nothing is left to discretion. This requirement acts as the limit on the scope of the search warrant, as it is limited to the places where the described object of the search warrant would be expected to be found.
The judge (or magistrate) will issue a search warrant only if the affidavit establishes the necessary probable cause and the search warrant is sufficiently limited in scope.
More later.
As always, feel free to contact me at walter.james@jamespllc.com
WDJiii