Every federal criminal case requires defense counsel to review the investigation and evidence for constitutional violations. A substantial majority, if not all, of federal cases involve search warrants; thus, a thorough review of the requirements of the Fourth Amendment is always at issue.

Most people are aware of the basic principles of the Fourth Amendment: 1) U.S. citizens are protected from unreasonable searches and seizures; and 2) a warrant requires probable cause.  Over the course of judicial history, the Fourth Amendment has adapted to specific legal scenarios and numerous exceptions have been created. Nonetheless, in situations where an exception does not apply, the Fourth Amendment’s warrant requirement remains true.

The technical requirements for obtaining a lawful search warrant vary from state to state; however, on the federal level the process for obtaining a search warrant is fairly straightforward. Specifically, a prosecutor typically drafts and presents an application for a search warrant to a magistrate judge. As required by the Fourth Amendment, the application must be substantiated with evidence to support probable cause for the warrant. The judge will either grant or deny the application based on whether probable cause exists to support the warrant. Once the application has been signed by the judge, it must be executed within a certain time frame, not to exceed fourteen days.

The standard for probable cause is best articulated by the Supreme Court’s decision in Illinois v. Gates, 462 U.S. 213 (1983). The Supreme Court set forth the assertion that “probable cause” is a flexible standard, one which requires consideration of the totality of the circumstances to determine whether there is a fair probability that contraband or evidence of wrongdoing will be found in a particular place. The Court instructed lower courts and judges to review the basis for search warrants in light of the veracity of and basis of knowledge of the persons supplying the information, and that such an approach will strike a balance between public and private interests under the Fourth Amendment.

Probable cause can be established through a variety of means, but more often than not it is met by attaching an affidavit signed by one of the federal case agents. The affidavit will briefly describe background information pertinent to the case, such as the specific statutes involved and alleged illicit conduct, and address why the particular search warrant is needed and what its issuance will uncover.

In some cases, probable cause can be proved simply through information obtained from an informant. In such cases, however, there are usually articulable facts that support the informant’s tip or there is corroborating evidence. In other words, there are usually other factors at play that support the credibility of the informant’s allegations. Again, a judge must look to the totality of the circumstances, including the veracity and basis of knowledge of the informant, in order to find that probable cause exists.

On its face, a search warrant has specific legal requirements. The warrant must state with particularity the place(s) to be searched and the persons or things to be seized. This is not only a requirement explicitly stated in the Fourth Amendment itself, but has been adopted through numerous court cases. The search warrant usually sets forth a specific address and describes the property subject to search and seizure. There is no limit as to how much property can be searched; therefore, the government typically affixes an attachment to the warrant application that enumerates a lengthy list of all property, including electronic property such as computers and phones, that is subject to the search. Thus, as long as the property is sufficiently described, the warrant is considered lawful.

To attack the legality of a search conducted pursuant to a warrant, there are several options available. The first option includes reviewing the warrant itself for legal discrepancies. An executed search that exceeds the scope of the warrant may be grounds to challenge it. Another option includes reviewing the basis for probable cause. If the evidentiary support for the warrant appears to fall short of the legal requirements of probable cause, it may result in exclusion of the evidence seized.

The most critical point to keep in mind regarding the legality of search warrants is that all factors need to be considered in an effort to suppress any evidence that was obtained unlawfully. Scrutiny as to the requisite probable cause, the face of the warrant itself, and the manner in which it was executed is critical from a defense perspective.

The author of this blog is Margaret S. Ververis, an attorney specializing in Federal Criminal Defense matters with the law firm of Ferrari & Associates, PC. If you have any questions please contact her at 202-440-2581 or ververis@ferrariassociatespc.com.

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