The Warrant Requirement

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Terms:


Magistrate
A civil officer empowered by governmental appointment. Not rising to the level of a judge, but usually lower judicial officer such as a justice of the peace.

Search Warrant
A written order issued by a properly authorized judge or magistrate, in the name of the state in which that judge or magistrate sits, that directs a law enforcement officer to search and seize any tangible property that is evidence of a crime, an instrumentality of crime, contraband, or the fruit of a crime


In most cases, a search or seizure conducted in the absence of a duly issued warrant will violate the Fourth Amendment.

A warrant must be issued by a neutral judge or magistrate following a showing of probable cause supported by sworn testimony or an affidavit. See Carroll v. United States, 267 U.S. 132 (1925). Clearly there would be a conflict if a magistrate who was burglarized were to issue a warrant to search a location for the fruits of that crime. Less obviously, a state attorney general is not considered neutral, nor is a judge or magistrate whose pay is dependent on the number of warrants issued.

EXAMPLE (1): Officer Cherpiko is hoping for a promotion and needs a few more busts this month to get it. He knows that the area of Two Points, in the seedier part of town, is frequently used by criminals to hide their stolen goods. Over dinner and beers one night, he convinces his cousin, a local magistrate, to issue a number of search warrants for warehouses in Two Points. In exchange, he promises to buy his cousin a new television once his promotion comes through. He also shows his cousin pictures of people unloading crates of stolen goods into each of the warehouses under discussion. Although there may be a showing of probable cause, it was not made by sworn testimony or affidavit, and neither is there a “neutral” magistrate.  Therefore, the warrants issued are invalid.

EXAMPLE (2): Same facts as above, except that the morning after having dinner with his cousin, Officer Cherpiko goes to the courthouse and provides sworn testimony as to the pictures showing unloaded stolen goods. His cousin then issues the warrants. The warrants are still invalid because his cousin is not a disinterested party – he is not a neutral magistrate.

In addition to the requirements regarding who may issue a warrant and the showing of evidence required, there are also rules regarding the form that a warrant must take. A warrant must be “precise on its face,” which means that it must describe with reasonable certainty the location that is subject to the search and the items to be sought and seized. If a subject names “the building at the corner of Main and Fifth” as the property to be searched and the building contains several, separate businesses, the warrant is not sufficiently precise and therefore is not valid. 

Compare Maryland v. Garrison, 480 U.S. 79 (1987), where police reasonably believed there was only one apartment on the third floor of a building and the warrant they requested therefore did not specify an apartment, but only said “third floor apartment.” Police had already found contraband in the apartment before realizing that there were two apartments on the floor. As soon as they became aware of that fact, they discontinued the search. The assumption that the third floor contained only one apartment was based on information from an informant, an inspection of the exterior of the building, and information obtained from a local utility company. The Court found it crucial that the officers reasonably believed that the description was sufficiently precise. The Court indicated that if the officers knew or should have known that there was more than one apartment, the search should have been limited only to the apartment for which they had established probable cause.

EXAMPLE (1): Judge E. Doe issues a warrant based on Officer Ellay’s sworn testimony that he saw Al Bronco removing stolen shoes from his trunk and carrying them into his ranch home in Big Town, California. The warrant is made out for “that property owned by Mr. Al Bronco in Big Town, California.” Unbeknownst to Officer Ellay and Judge E. Doe, Al owns several houses in Big Town, including one in which his mother lives and others that he rents out. This information is readily available by searching records of property owners at Town Hall. If the warrant is used to search a house other than the ranch, the search will be found unreasonable due to an insufficiently precise warrant.

EXAMPLE (2): Judge Banks issues a warrant “to search Donald Dudley’s home, which is adjacent to the Quicky Mart at the corner of Hollywood and Vine, Tupalooka County, for evidence of the robbery of said Quicky Mart which took place last Tuesday; and to seize any evidence or fruits of the crime found therein.” Even in the absence of a street address, since this sufficiently identifies a single property, the warrant will not fail for lack of precision.

EXAMPLE (3): Judge O. Versalice issues a warrant “to search 867 West Drive, Town of Cheshire, County of Souris, State of Georgia, for evidence of criminal activity and to seize any such evidence or any contraband found therein.” Although the property to be searched is sufficiently identified, the warrant is overly broad in describing what is to be sought and seized. This warrant will fail for lack of precision.

Furthermore, a judge or magistrate may issue only warrants that will be served within their jurisdiction. While Federal Judges might be able to issue a warrant for various locales, generally, a warrant is only valid if issued by a judge or magistrate sitting in the state in which the warrant will be served. For example: 

Justice of the Peace T. Buford is a duly appointed judicial officer in the town of North Salem, New York State, authorized to issue search warrants. He issues a warrant “to search 118 St. John’s Road, town of Ridgefield, County of Fairfield, State of Connecticut for evidence relating to the recent robbery of the North Salem Savings & Loan.” Because Justice T. Buford lacks authority to issue a warrant for property in nearby Connecticut, the warrant is invalid.



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