THE WARRANT REQUIREMENT FOR SEARCHES: PROTECT YOUR CIVIL RIGHTS

Under the 4th Amendment to the U.S. Constitution, we all have a right to be free from unlawful searches. Therefore, search warrants (or exceptions to the search warrant requirement) are required when the government conducts searches. Under most circumstances, if a search warrant used to conduct a search is defective, evidence gathered during the search cannot be used against the person who was searched (unless exceptions apply or that person did not have a reasonable expectation of privacy in the place that was searched). Last December in Butler County, Ohio, the criminal case against a suspect facing felony drug charges for trafficking heroin, possession of heroin, and illegal use or possession of drug paraphernalia was dismissed merely a few days before trial.[1] She was arrested when 120 “caps” of heroin and a gun were allegedly found during a search of her home.  So how did she get off with that kind of evidence against her? The court granted her attorney’s motion to suppress evidence gathered during the search, because the judge had forgotten to sign and date the warrant. So, he signed it nearly a week later when the officer who executed the warrant noticed the missing signature and date. Thus, the police did not have a valid search warrant when the search was conducted, and so that evidence obtained during the search was thrown out.

While obvious defects like missing signatures and dates are not common, other requirements are more frequently found to not be satisfied. Lets break those requirements down: 1) A determination of probable cause made by an unbiased and detached magistrate; 2) the person presenting the information to a magistrate must attest to the validity of the information under oath; 3) the warrant must particularly describe the place to be searched (address) and the things to be seized (or incorporate by reference an affidavit with this information accompanying the warrant); and 4) you guessed it – the warrant needs to be signed and dated by a magistrate.[2]

If you’ve been served with a search warrant and searched by the government, make sure that warrant was valid by contacting a competent civil rights attorney immediately.

— By Ara M. Baghdassarian, Esq., Barnes Law

Ara M. Baghdassarian is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://www.journal-news.com/news/news/crime-law/drug-case-dismissed-after-judge-fails-to-properly-/npqGs/

[2] Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).