Search & Seizure

Search & Seizures Whenever an individual has property or his person seized or searched the Fourth Amendment’s prohibition against unreasonable search and seizures in invoked. Search and seizure laws are involved in virtually every criminal prosecution. The simple stop of a defendant for an alleged traffic violation is a seizure under the Fourth Amendment and a violation of the Fourth Amendment can result in the arrest being quashed and any evidence seized being suppressed. Search and seizure law is typically involved in all possession offenses including drug related offenses, child pornography, and even in DUI cases. The warrant clause of the Fourth Amendment to the United States Constitution states, “no warrant shall issue except upon probable cause.” Although, it is well settled that a warrant issued by a neutral and detached magistrate is presumptively supported by probable cause, a warrant may be attacked and the probable cause determination challenged. The standard of review of a determination of probable cause by the magistrate or judge is whether under the totality of the circumstances, the magistrate had a substantial basis for concluding that the search would uncover evidence of criminal wrongdoing. A search without a warrant is presumptively unreasonable. Probable cause is defined in the criminal context “as a practical, non-technical evidentiary showing of individualized criminal wrongdoing that amounts to more than mere suspicion, but less than proof beyond a reasonable doubt.” Probable cause to issue a search warrant is found by looking at the “totality of the circumstances” contained in the four corners of the affidavit. A warrant will lack probable cause if the warrant is based on an informant and the informant information was not supported by other incriminating facts. A judge making a probable cause determination must be careful not to simple ratify the factual allegations without some showing of reliability on the part of the source. A failure to ensure that a complaint contains more the “bare bones’ conclusions is an abdication of the duty of the issuing judge. The duty of a reviewing court is to ensure that the issuing judge had a “substantial basis for concluding that probable cause existed Suppression is the appropriate remedy if a judge issuing a warrant was misled by the information in the complaint and the police or affiant knew the information was false or would have known the information was false except for his reckless disregard for the truth. In Franks v. Delaware, the Court held that a defendant may challenge the validity of an affidavit and is entitled to an evidentiary hearing if the veracity challenge is supported by affidavit or other relevant information, and the falsehood is deliberate or made with reckless disregard for the truth. A defendant is also entitled to an evidentiary hearing if the affiant is a nongovernmental informant. If the allegations are proven, the warrant is to be examined for a finding of probable cause absent the false statements. Once the false statements are deleted, the analysis must follow the “totality of the circumstances test” set out in Illinois v. Gates. The State cannot now provide additional information to support the reliability of the affiant. United States v. Bertrand.