The Fourth Amendment of the U.S. Constitution protects us from unreasonable searches and seizures. Unlike a warrantless stop and search of a car or of a person walking down the street, when law enforcement searches a home or business they have usually obtained a search warrant to do so. A search warrant must be issued by a neutral and detached magistrate (judge); be supported by probable cause; and describe in detail the place to be searched and the things to be seized. In the typical situation, an agent or police officer working with the prosecutor drafts a search warrant affidavit that provides the judge with probable cause to believe that evidence or contraband will be located at the particular location to be searched. Probable cause exists where the facts and circumstances within the agent’s knowledge, from reasonably reliable and trustworthy sources, would cause a reasonable person to believe that a crime has been committed and that seizable property can be found at the location to be searched.

As an example, in a typical drug case the police have information that drugs are being sold from a particular house by a particular person. The police would likely confirm that the person they suspect lives at that house, confirmed through utility bills, property records or surveillance over a number of days or weeks. The police could have an informant do a “controlled buy” of drugs from the person at that house and have information that additional quantities of drugs are still in the house or are due to be delivered at a certain time. The affidavit would describe all of this in detail to the judge, as well as a description of the house to be searched.

Probable cause is more than mere suspicion, it is more akin to reasonable cause. The information presented must also be timely – meaning that the informant in this example bought drugs within the last week or so, not months prior without more recent information to update the affidavit to convince the judge that drugs and drug records will likely still be at the house. The judge reviews the totality of the circumstances in making a decision whether to issue the search warrant or not.

A search warrant is also limited to a specific number of days and times of day that it can be executed. Usually the warrant is good for a maximum of 14 days and most allow the search to be conducted between the hours of 6 a.m. to 11 p.m. unless special circumstances are demonstrated to the judge. Most search warrants require the police to “knock and announce” their presence and that they have a search warrant authorizing them to enter the house. If after a reasonable amount of time the person does not answer their door, the police may force their way into the home or business to be searched. In certain limited circumstances, the court may issue a “no-knock” warrant that permits the police to force their way into the place to be searched without any prior knock or announcement. In such cases, the judge would need to be convinced that there would be a danger to the officer or a risk of destruction of the evidence for a no-knock warrant to be granted.

Once the search is completed, the officers will leave a copy of the warrant and a receipt for the property taken. The copy of the warrant is not the affidavit of probable cause that was submitted to the court. Rather, it is simply the form search warrant cover sheets that list the location to be searched, the permitted time and items to be seized. The defendant’s attorney would obtain the actual affidavit during discovery in the criminal case.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.