Section II: Search Warrants

  This section describes search warrants and explains when they are and are not necessary.

  11. What Is a Search Warrant?

  A search warrant is an order signed by a judge which authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."

  12. How Do Police Officers Obtain Search Warrants?

  Police officers obtain warrants by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that an affidavit establishes "probable cause" to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion. (See Chapter 19.) A sample affidavit for search warrant and search warrant are in the back of this chapter.

  13. How Much Information Do Police Officers Need to Establish That "Probable Cause" for a Search Warrant Exists?

  The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."

  The information in the affidavit need not be in a form that would make it admissible at trial. (For example, a judge or magistrate may consider hearsay that seems reliable.) However, the circumstances set forth in an affidavit as a whole should demonstrate the reliability of the information. (Illinois v. Gates, U.S. Sup. Ct. 1983.) In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

  · a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on

  · an informant who implicates herself as well as the suspect