Many people are familiar with the term search warrant, but fewer know what it takes for a police officer to get one or how one is obtained. This blog will take a look at the process of and requirements for obtaining a search warrant, as this often-used tool to gather evidence can be very important in a criminal case – both for the police, and for a defendant and his or her attorney.
Indiana statute permits a court to issue a search warrant only upon probable cause, supported by oath or affirmation. This means that an officer seeking a search warrant must swear or affirm under penalties of perjury that the information in the search warrant application is truthful. The facts giving rise to probable cause may be presented to a judge orally or in writing and can even be done over the phone if necessary.
No matter how the information is presented, however, it must include facts sufficient to establish probable cause. It must also include information which would weigh against a finding of probable cause, as that information is important to the judge’s decision to approve or reject the search warrant. The judge reviewing a search warrant application must be neutral and detached, and must be able to determine that probable cause exists for the requested search.
In addition, there must be a nexus between the crime being investigated and the object of the search. As a result, the search warrant application must connect the place to be searched with the crime being investigated. A mere hunch that evidence of a crime might be found in a particular place is insufficient.
For example, in a real Indiana case, a confidential informant told police he made one purchase of drugs from an individual in a barbershop open to the public. Police officers obtained a search warrant for the barbershop, but the Indiana Court of Appeals later determined that the search warrant was invalid. This conclusion was reached because the search warrant affidavit failed to establish a nexus between the drug seller and the barbershop. In that there was no basis for the officer to believe drugs were being sold or stored at the barbershop, and no basis for the officer to believe drugs would be found in the barbershop when it was searched, a sufficient nexus was not established.
In some circumstances, officers receive information from another person which leads them to want a search warrant. In such a scenario, an officer must try to corroborate the information received with his or her own investigation. The information corroborated must be something more than simple facts which any member of the general public could obtain, such as the make, model, and license plate number of the car. If the information comes from an identifiable person, the officer must be able to establish the person’s credibility. In seeking a warrant to search a house for drugs, for example, an officer may write that he received information from a confidential informant who has previously provided truthful information and for whom the officer has no reason to doubt credibility.
In the affidavit, the officer must also particularly describe the place to be searched and things to be searched for and seized. In addition, an officer must substantially allege or more crimes committed in relation to the search warrant. This means that an officer must assert that a crime was committed, in addition to establishing good cause to believe that evidence of the crime will be located as a result of executing the search warrant.
If a judge approves the search warrant, an officer generally must execute it within ten days. Once executed, an officer must file a search warrant return with the issuing judge which identifies the evidence seized pursuant to the search warrant. This evidence will typically be held until the conclusion of a criminal case, assuming one results from the search warrant and investigation.
Search warrants can yield substantial amounts of information. This is especially true with the prevalence of smartphones, which are often targets for officers seeking evidence of communications, locations, photos, and other data which may help build a case. Given the extensive use of search warrants, and the significance of evidence which can be obtained using them, it is imperative to have an experienced attorney who can ensure that a search warrant in your case was properly obtained and executed. Mistakes or shortcuts on the part of an officer can be the difference between evidence being admissible at trial or being suppressed prior to trial.
If you have been served with a search warrant, contact the attorneys at Banks & Brower to protect your interests and fight your case. We are available 24/7/365 at 317-526-4630 or info@banksbrower.com.