What you need to know about search warrants.

If ever approached or placed under arrest, always remember the 5 Words: ‘I HAVE NOTHING TO SAY’, don’t speak until a lawyer is present.  shera~

What Is a Search Warrant and When Is One Needed?

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One of the greatest freedoms protected by the US Constitution is your right to privacy, that is, the right to be free from government interference and intrusion. The Fourth Amendment protects your privacy by limiting law enforcement agents’ power of search and seizure. Generally, this means that they can’t search you or your home or seize your personal property without having a good reason for doing so. And, unless some specific exception applies, they have to have a warrant before they make a search or seizure.

What’s a Search Warrant and How Do They Get One?

Think of a search warrant as a special permission slip. It allows law enforcement agents or officers to search a specific place or area at a specific time and seize specific items. For example, say that detectives from the local police department believe you’re involved in trafficking or selling marijuana out of your home. The detectives may ask for a search warrant authorizing them to search your home at 10 P.M. and seize any marijuana they find there.  To get a warrant, agents need to:

‘Knock and Announce’

The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on “‘the probability, and not a prima facie showing, of criminal activity . . . .’ ” Illinois v. Gates (1983) 462 U.S. 213, 235; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 ["To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required."]

“knock and announce” requirement of 18 U.S.C. section 3109

Under 18 U.S.C. section 3109, an officer is permitted to “break open any outer or inner door of a house . . . to execute a search warrant,” but only if “after notice of his authority and purpose,” he is refused admittance.

There are three interests that the “knock and announce” requirement of section 3109 is intended to serve. This requirement (1) reduces the potential for violence to both police officers and the occupants of the house into which entry is sought (safety interest); (2) guards against the needless destruction of private property (property interest); and (3) symbolizes respect for individual privacy (privacy interest). Id. at 588.

A defendant has standing to challenge the legality of a search on Fourth Amendment grounds only if he has a “legitimate expectation of privacy” in the place searched. Rakas v. Illinois, 439 U.S. 128, 148 (1978). The defendant bears the burden of establishing his legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

For A Search Warrant To Be Legal It Must:

1. Be signed (not stamped) by a judge of jurisdiction.

2. The signature must be legible.

3. The judge must print his name under the signature. It must be printed not  typed.

4. The warrant must be imprinted with the court seal.

5. The warrant must state the areas to be searched and the item or items that are being sought.

6. The warrant is to be accompanied by TWO signed affidavits giving reasons for the search.

7. The warrant must be presented and the person or persons allowed to read said warrant.

Note:
If any of the above conditions are not complied with the search should not take place. If the search is conducted it is an illegal search and the officers conducting the search are subject to legal action.
If a search is conducted any items that are removed must be listed. A copy of the “listing document” is to be provided to the resident and or owner of the premises. In all cases, landowners must have their properties posted with a Title 18 “NO TRESSPASSING” sign. If law enforcement violates this sign without the proper paperwork or does not have jurisdiction, they are subject to a $5000 per day, per incident fee. (Be sure to get the officers name and badge numbers.)

Freedom means the right to keep private our personal papers, books and property including financial records, not to be surrendered at the whim of a government bureaucrat. This Amendment is based on the old Common Law maxim that states “Every man’s house is his castle; even though the winds of heaven may blow through it. The King (or government official) cannot enter it.”
This Right was claimed by our forefathers against the “writs of assistance” or general warrants that allowed officers to engage in a “fishing expedition” in searching a man’s premise to entrap him.

Further reading on Search Warrants

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