You have the right to privacy. You have the right to live your life and be free of governmental intrusion. Your home, your personal items, and you yourself are protected from being searched by the state. That is one of the founding principles of our democracy. There are, of course, exceptions. The government can invade your privacy if they have a search warrant. The government must show, among other things, that there is probable cause to believe there is criminal activity going on. Let’s discuss your rights and the Commonwealth’s obligations when it comes to search warrants.
“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.”
That’s the language from the Fourth Amendment to the U.S. Constitution. It grants sweeping protections to all of us. It prevents, or at least restricts, the government from intruding into your privacy. As a general rule, it requires the police to obtain a search warrant before they can come into your house and search. In order for this protection to be effective, however, you must know your rights and how to use them.
Search Warrant Definition
What is a search warrant? A search warrant is a court order based on probable cause to believe illegal items or evidence of crimes are located in a specific place. It allows the police to enter and search for those specified items.
Search Warrant Requirements
The issuance of the search warrant must be based on evidence. That evidence is usually a written, sworn statement called an affidavit. It is usually a police officer that provides the affidavit. It is presented to a “neutral and detached magistrate”. That person is a judge or a clerk-magistrate. The evidence presented must convince the him or her that there is probable cause to believe that a crime is being committed and evidence of that crime can be found at a certain location, such as your home.
Search Warrant Procedure (How to Obtain a Search Warrant)
A search warrant generally starts with an investigation by the police. They gather information about criminal activity. They write an affidavit explaining their findings. They present that information to a judge or magistrate. If the judge or magistrate is convinced, a search warrant is issued. The police then execute that warrant and search. The police must then bring back the search warrant to the Court along with a search warrant return. The return lists any items that were seized.
What Must be Specified on a Search Warrant?
The search warrant must specify the location to be searched. It must state the address if it is a building that will be searched. It must specify which parts of the building are to be searched. For example, the search includes the basement, the attic, or garage. It must indicate an apartment number if an apartment is to be searched. It will typically authorize a search of any person found at that location at the time of the search.
What Can the Police Search For?
The search warrant must specify what the police are looking for. It can’t just be a fishing expedition. Some items usually included in a search warrant include:
- Contraband – items that are illegal to possess such as drugs and guns;
- Evidence of crimes – items that would tie someone to the crime under investigation. For example, if a suspect is believed to have blood on his or her clothes as a result of an assault; and,
- Stolen items.
What Can Make a Search Warrant Invalid?
There are a number of ways to attack the search warrant. Because a search is an intrusion upon your privacy, the government must comply with many rules. If they don’t, the search warrant may be invalid, if so, the evidence seized is not admissible at time of trial.
A Motion to Suppress is usually the way to challenge a search warrant. There are several grounds upon which to challenge the search warrant. Among them are:
- There was no probable cause for the warrant to issue;
- The police officer lied in the affidavit;
- The search exceeded the scope allowed by the warrant;
o The police searched areas not specified in the warrant; and,
- The warrant was stale – it wasn’t executed soon enough.
Police often use confidential informants to get a search warrant. The information given by these people is often questionable at best. They’re usually working with the police because they were caught committing crimes and are trying to help themselves out of a jam.
Massachusetts uses the Aguilar-Spinelli test to determine the validity of a search warrant based on a confidential informant’s information. That analysis requires the Court to look at two factors:
- Basis of knowledge – the informant must say how they know about the illegal activity. The informant has personal information about the crime under investigation because they saw the items at the location, for example.
- Reliability – the informant must be reliable. The police do this by stating they have used information from this person before and was accurate.
If you have a case involving a search warrant, know your rights. Not every warrant is valid. There are many steps the government must take in order to legally get a warrant and search your private property. If the warrant stands, any items seized can be used against you. We must hold the government accountable. Together, we can attack the search warrant. If we are successful, we can suppress the items that were found. That can significantly weaken the Commonwealth’s case against you. These are your rights. Use them.