Does probable cause used to acquire a search warrant have to be given to the suspects lawyer?
Friday, November 20th, 2009 at
10:31 pm
Vic L asked:
This is for a novel I’m writing. The warrent is for the search of a house owned by my suspect. I’m wondering if his lawyer must be given the details for the search or just Cialis Without Prescription a general statement saying that we have found a motive.
This is for a novel I’m writing. The warrent is for the search of a house owned by my suspect. I’m wondering if his lawyer must be given the details for the search or just Cialis Without Prescription a general statement saying that we have found a motive.
the probable cause is gonna be written on the search warrant, a liar i mean a lawyer can get a copy of the affidavit for a search warrant once it is filed in the clerks office. cause the actuall search warrant that is given to the suspect the day the search warrant is executed will not have it on there.
It depends. Do you mean before or after the search warrant is executed?
Police don’t have to tell anyone they have probable cause for a search warrant before executing it, except for a judge.
At the time the search warrant is served, the police will provide you with a copy of the search warrant. Inside, it will tell you what they are looking for, and why they are looking for it. If a search warrant is being executed, that means they have a good enough reason that a judge thinks it’s acceptable, and may even discuss it with you (strong smell of chemicals coming from your house, sudafed boxes in your trash = probably cause to search for a meth lab)
If they charge or arrest you, they have to provide your lawyer with any information they have relating to the crime, including the affidavit (testimony against you), evidence, pictures or videos of you engaged in illegal activities ect.
Search warrents are issued by a judge. They make the decision as to the probable cause before signing it. No one else is involved before the search.
I think you are confusing a few issues here.
A search warrant is issued by a judge and includes a general statement as to what areas may be searched and what the police are looking for. So yes, the lawyer gets the details of what may be searched right away (as long as they get a copy of the warrant).
The warrant is obtained by police by requesting a warrant and filing an affidavit with the Court as to the ‘probable cause’ that exists. This decision is based upon a common-sense standard and is typically not terribly difficult to obtain. This affidavit is available to the attorney…. but after the search has been executed…what it says no longer matters. That is, whether there was any truth at all to what the officer stated in his affidavit, matters not at all once the warrant has been issued. As long as the police stay within the bounds of the warrant, anything and everything that they find that implicates a person, is admissible in Court (even if the affidavit for the warrant was based upon a pack of lies). The Constitutional prohibition is merely against warrantless searches… no mention of how the warrant is obtained… I know it seems ridiculous.
Finally, none of this has anything to do with the police finding a motive. Usually motivation is not important to the investigation other than it might point in a general direction as to what else might be investigated. Typically motive alone is not enough to get a warrant. Think about it, there are dozens of people who might have motivation to commit a crime. For example, just being strapped for cash is a motive for something like robbery…. but no judge in his right mind allows searches of everyone in the area of a robbery who happens to be broke… there HAS to be more than motive to get a warrant.
Hope this helps.
EDIT for Mikeyco…: It was not my intention to disparage police or imply that they frequently use made-up information for affidavits. I do not off-hand recall the name of the line of cases….they as I recall are not actually based upon police willingly lying to judges. Rather they were based upon police relying, in good faith, on bad information. What the cases hold is that a validly issued warrant cannot lead to exclusion of evidence if the police were acting in good faith… even if the information stated in the affidavit turns out to be utterly false. In fact, this whole system relies on the honesty of police officers. P.S. I don’t do criminal defense work so I have no animosity toward the police… sorry again if it seemed otherwise.
P.S.S. Hobbs was a federal case.
The search warrant can be obtained by the defense attorney, which lists the PC for the search warrant.
If Hawkeye is correct about basing an affidavit on a pack of lies, I’ve been screwing up for an awful long time. Here I’ve only been telling the truth and according to him/her, I could have been making up a bunch of lies and being much more successful. Interesting theory.
While it’s generally correct to say the affidavit becomes public at some point in time, it’s also possible (and may provide an interesting twist to your novel) to have the affidavit sealed so that it is not public and cannot be reviewed with prior judicial authorization. In California, this is known as a Hobbs warrant (and for all I know, this is a federal case and may be known in all states) and allows for the information in the affidavit to remain confidential under certain circumstances (for example, the information could have come from only one source and that source stands a good chance of being killed for providing information).