What can make a search warrant invalid? The Fourth Amendment of the United States Constitution protects its citizens from “unreasonable searches and seizures.” The first step for all searches or seizures in this country is the search warrant. More than 50 years ago, the United States Supreme Court “strongly supported” the idea that police should seek a search warrant before searching a person or their home.
The “preference” for a search warrant is that we all have reasonable expectations of privacy in our bodies (for example: to obtain a blood sample) and our homes.
The law favors the search warrant requirement because it means that police must convince a judge – in writing and under oath – that they have probable cause to believe criminal evidence will be found in the place they want to search. A more detailed explanation of the “probable cause” standard can be found here.
There are situations in which police do not necessarily have to get a warrant, but those are exceptions to the search warrant requirement. Search warrants are still widely preferred.
Why did the police get a search warrant in my case?
There are two primary situations in which police seek a search warrant. Sometimes, they aren’t sure they have enough evidence to even charge you with a crime. In those cases, they request a warrant to look for enough evidence to justify a criminal charge. Sometimes, though, police seek a search warrant in order to add to the evidence they already have against you.
Although the law states that a search warrant is the preferred way for gathering evidence against a person, it can still be challenged in a number of respects. However, the law regarding search warrants is complex and very much depends on the facts in your individual case.
You need an experienced criminal defense attorney with a strong history of challenging searches and seizures to protect you when evidence in your case was obtained through a warrant.
You cannot refuse to allow police to search if they have a warrant
If police arrive at your home, business or other property with search warrant in hand, you cannot refuse to let them search. Let police in (or on) your property and immediately tell them you are calling your lawyer. Your lawyer will emphasize that you cannot stop the search and stress that your chance to fight back will come later. Your lawyer may also ask to speak to the officer in charge of the search.
After you tell the police that you are calling your lawyer, remain silent. Whether you reach your lawyer or not, do not say anything while police are on your property. The search may very well take several hours and the temptation to talk, even to be polite, may be strong. Don’t do it.
As indicated, you and your lawyer will have the opportunity to fully challenge the warrant in front of another judge if charges are filed. However, if you say anything to police while they are there, even the best lawyer may not be able to keep your statements out of court.
To reiterate: if police show up with a search warrant, tell them you are going to cooperate, but you want to call your lawyer. After that, no matter how many times an officer tries to ask you a question, tell them that you won’t say anything until you have spoken to your lawyer or that you are invoking your right to silence.
Repeat the comment as often as necessary. If you overhear officers say something that you really want to comment on, don’t do it. Stay silent. One way to silently fight back is to write down every single thing police ask you or every comment you overhear. That information can be extremely useful when the time comes to actually challenge the warrant.
What can make a search warrant invalid?
Depending on the situation, your attorney may be able to challenge the search warrant. If any of the following criteria are not met, the search warrant may be invalid.
A search warrant must include all information and be sworn to under oath
When a police officer wants to get a search warrant, they prepare a form called “Affidavit in Support of Search Warrant.” The Affidavit must include all evidence police believe will convince a judge that there is probable cause to believe evidence of a crime will be found in the place they want to search.
The officer must also swear under oath before the judge that the information in the Affidavit is true or accurate as far as the officer knows. A violation of either of those basic requirements provides separate grounds for attacking a warrant.
First, an officer can’t support the search warrant request by telling the judge things orally. A judge may only consider the information contained “in the four corners” of the Affidavit. In general, if information isn’t in the Affidavit, the judge can’t consider it.
Secondly, sometimes police officers lie about what evidence they have or what a “confidential informant” (snitch) told them. If it turns out that they lied about the evidence they have or where they got it your lawyer can mount a strong challenge. Many times you and your lawyer may believe an officer lied under oath but can’t prove it.
Such challenges are far less common than challenges on other bases. Therefore, it is critical that your lawyer be aware of this kind of challenge and understand the ins-and-outs of mounting it on your behalf.
Information in the Affidavit must have been obtained legally
Sometimes, police include information in the Affidavit that they obtained illegally. Police can only rely on evidence they obtained while they were in or at a place they were legally entitled to be.
For instance, police go to your home because someone said they haven’t heard from or seen you in a couple of days. Police are generally authorized to conduct a “welfare check” to see if you might be hurt, ill or incapacitated.
However, there are restrictions. The officer cannot just walk up to your door, try the knob, find it unlocked, and enter your home. If they do and while inside, see bag(s) of opioids on your dining room table, they cannot include what they saw in the Affidavit.
Sometimes, a police officer will trespass on private property to make closer observations of something, like the license plate on a vehicle backed up to a garage. Your attorney will challenge the search, because the officer was not legally entitled to be where he was when he saw the license plate.
The information in the Affidavit must be relatively recent
In general, police cannot investigate a matter, talk to informants, corroborate their suspicion that criminal activity is afoot and sit on it. For example, if an informant claims he was in your house and saw cocaine in October, but the officer doesn’t try to get a search warrant based on that claim until January, your lawyer will argue that the evidence is “stale.”
There are ways that police can get around the staleness issue, but an experienced criminal defense lawyer will know how to counteract their attempts.
Unnamed informants must be reliable
It is not unusual for an Affidavit to include statements that came from an anonymous source or from someone who acts as a police informant, particularly in narcotics cases. The danger of “anonymous” evidence is that people have their own agendas or bear grudges.
Getting someone else in trouble by making anonymous allegations is always an issue. As a result, there are very specific legal requirements for evidence that comes from anonymous sources or confidential informants.
Generally, if an Affidavit includes allegations from an anonymous source or confidential informant, the Affidavit must also demonstrate two things:
- The Affidavit must also include evidence that the source of the information wasn’t just repeating what they heard.
- Information that comes from these kinds of sources must be from their personal knowledge, like what they saw, what they heard, what they did. The Affidavit must include evidence that the source of the information is reliable.
There are a variety of ways police can meet those requirements. Similarly, there are a variety of ways your lawyer can challenge that information.
The search warrant must set out probable cause
The most common challenge to a search warrant is that it does not support probable cause to believe evidence of a crime will be found where police want to search. Your lawyer will argue that even if all the information in the Affidavit is taken as true, it does not equal probable cause.
So, what can make a search warrant invalid? To summarize, a search warrant may be invalid if the information in the affidavit was:
- Incomplete or inaccurate
- Obtained illegally
- Not recent
- Not from a reliable source or not based on the source’s personal knowledge
- Insufficient to set out probable cause
Seek professional help if you need to challenge the validity of a search warrant. Also; remember to cooperate silently if police do conduct a search based on a search warrant.