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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.

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