We have all seen the procedural crime dramas in which the cops show up to a house with a search warrant, but we rarely ever get to see how the cops got the warrant in the first place. We are going to cover that here.
Essentially, there are two elements that must exist for a search warrant to be issued: (1) a judge, and (2) a warrant application.
1. The Judge
Police officers cannot go it alone when it comes to creating a search warrant. Rather, the police investigating a crime must to go to a judge – typically described as a “neutral and detached magistrate” – in order to get warrant.
Why talk to a judge? It is because the police who are investigating a crime may have difficulty being objective, or neutral, about the outcome of a case. Indeed, the cops are highly motivated to make a case. It helps in their own careers as a mark of success. So, cops have a desire to make a case, and the bigger the case, the better.
Given a cop’s passion for an investigation, it is necessary to have an objective third party, with no “skin in the game,” to make a decision about whether the cops can interfere with someone’s private property. That objective third party is the neutral and detached magistrate. “Neutral” means that the judge has no interest in whether a case is made or not, and “detached” means that the judge is separate from the cops and the case itself.
When the time comes to challenge the validity of a search warrant, the question that is most often raised is whether the judge issuing the warrant was, in fact, neutral and detached.
2. The Warrant Application
A warrant application is normally written by the police officer investigating a case, and it is written in the form of an “affidavit,” or sworn statement. That, by the way, goes right to the requirement under the Fourth Amendment that a warrant must be supported by “Oath or affirmation.” The affidavit is the “oath or affirmation” that the Fourth Amendment is referring to.
The warrant application is normally not a short document. Rather, the police need to go into some detail about what kinds of illegal items they are looking for, where they think they will find the illegal items, and why they believe that they will find illegal items there. Typically, the warrant application/affidavit reads like a full narrative of the investigation, from the moment the cops first received a tip of criminal activity to the moment they are writing the warrant application.
The warrant application needs to be highly detailed to make sure that the judge will be convinced that there is a good reason – i.e., probable cause – to allow the cops to conduct the search.
Ultimately, once the search warrant application is presented to the judge, the judge reads it to make sure that there is enough information to justify allowing the cops to conduct the search.
Do judges simply rubber stamp warrant applications? Thankfully, no. Most judges take their role as a neutral and detached magistrate very seriously. That is because the stakes are high. The judge is being asked to allow cops to go into someone’s private home and rummage through things. That gives cops a lot of authority. Accordingly, judges are very careful with approving warrants.
More often than not, judges are persuaded that there is enough to allow the police to do the search. However, there are some occasions when the judge will limit the cops, and not let them search everywhere they want to, or simply say “no” to the search warrant altogether.
In all, the takeaway from this section is that cops do not create search warrants themselves. They need to make their case to the judge before actually getting the warrant. Further, the warrant limits the actions of the cops. While you may think that a search warrant gives the cops free reign to destroy your house or your car, that is not the case if the cops are correctly following the rules.
3. Can You Tell the Cops That They Can’t Come in If They Have a Warrant?
Unfortunately, no. A search warrant is a court order. That means that the cops have the authority to do what the warrant authorizes them to do. If that is to search your home, then the cops can do that, without your consent.
That does not mean, however, that the cops can get away with not showing you the warrant. If the cops come to your house to execute a warrant, then they must show you that they actually have a warrant. In that way, you can refuse the cops entry until they present you with the written warrant.
If the cops “say” they have a warrant when none actually exists, then that is illegal. Of course, you do not want to escalate a situation by trying to stop a group of cops at your door. But, if there is no warrant, then it is highly likely that anything the cops find as a result of their search will be thrown out of court as illegally obtained.
In that regard, if you have a lawyer, it would be a good idea to contact your lawyer the minute that the cops come to your door with a warrant in their possession.
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