Degree of Deference The reviewing judge is not examining police conduct with great attention to minor details or dissection.
The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued. The reviewing judge should not "substitute his or her own view for that of the authorizing judge. A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".
Quality of Drafting Flaws are to be expected. Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the The ITO is examined as a whole and not one piece of evidence at a time. Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.
Amplification Evidence Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence. It was suggested by Justice Hill in R. It has also been suggested the justice must be satisfied: . A search warrant must specify the premises that is to be searched. The ITO must specify a particular offence that is being investigated. An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the appliation.
The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice. This does not require disclosing every fact that might possibly be relevant. A judge or justice of the peace rejecting a search warrant application can provide the applicant with a list of errors or omissions that make the warrant deficient without losing their responsibility as a neutral arbiter.
A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid. The sufficiency of the description of the place must be assessed based on the face of the warrant, separately from the contents of the ITO or the manner it was executed. If the address in the warrant is wrong, the search becomes warrantless.
For a search of an apartment building, the warrant must specify the unit number. A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section. Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficient clear.
The warrant's description of things to be seized "operates as a guide for the officers conducting the search. The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.
It has been recommended the following principles be considered: . Silverstar Energy Inc.
The "raid" is the lead story on the evening news and featured on the front page of the next morning's paper. How Do Polygraph Tests Work? Amplification Evidence Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence. It has been recommended the following principles be considered: . Neighboring establishments and the media then catch wind of what's happening. If possible, make copies of any materials that are necessary for ongoing business operations before the agents remove such documents from the premises.
Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel. The statement cannot be involuntary. A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.
Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.
There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. The applicant should always indicate whether they are relying on hearsay or direct knowledge. An ITO relying upon hearsay does does not exclude it from establishing "probable cause". An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value.
Details on the source should be used to distinguish the information from rumor or gossip. Where the hearsay source is not set out the part of the ITO may be defective.
It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable. It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided. Whether the confidential informant was paid should be provided as well. For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.
It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation. This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant. The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith. However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid. However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.
Search warrants are not required in most cases. Courts have determined in recent years that many situations do not require the issuing of a search warrant, simply because a search is considered reasonable under many circumstances. A search warrant is also not required in instances where the Fourth Amendment does not apply. Do police need to obtain a search warrant once an arrest has been made? Following an arrest, a police officer may search for weapons in an effort to protect him- or herself.
Additionally, officers may search for evidence that the alleged offender would likely attempt to destroy by searching him or her following the arrest. It is also important to note that a residence or other location may be searched without a warrant if police arrest a suspect, and believe a potentially dangerous accomplice may be hiding on a property. This is what is often referred to as a "protective sweep," and involves a walk-through and cursory visual inspection of closets, basements, under beds, or areas where an accomplice would likely hide.
When probable cause exists, police may search all packages in the vehicle, and compartments such as glove box, console, trunk, etc. In essence, any bags, boxes, compartments, or areas of the vehicle are fair game. A vehicle cannot be searched when the driver was pulled over for a simple traffic infraction, however police can order all persons inside to exit for safety reasons regardless of whether there is suspicion of criminal wrongdoing.
Police may search without a warrant in an emergency situation, such as when the public's safety may be at risk during the time it would take to obtain a warrant. It is the duty of police officer to preserve evidence, and protect individuals and the public. Police may perform a warrantless search when evidence is in "plain view. The same is true if evidence of cultivating marijuana or "cooking meth" is in plain view from a helicopter or airplane from the sky - the property may be searched without a warrant.
Notwithstanding any other law, any data or information contained in or on a device seized may be recovered and analyzed after the expiration of the time allowed under Subsection a. In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.
When the property which the officer is directed to search for and seize is found he shall take possession of the same and carry it before the magistrate. He shall also arrest any person whom he is directed to arrest by the warrant and immediately take such person before the magistrate. For purposes of this chapter, "seizure," in the context of property, means the restraint of property, whether by physical force or by a display of an officer's authority, and includes the collection of property or the act of taking possession of property.
Acts , 79th Leg. For purposes of this chapter, an officer directed under a search warrant to search for and seize a gambling device or equipment, altered gambling equipment, or gambling paraphernalia in the discretion of the officer may:. Added by Acts , 81st Leg. Not later than three whole days after executing a search warrant, the officer shall return the search warrant. Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which the warrant has been executed.
The officer shall also deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The failure of an officer to make a timely return of an executed search warrant or to submit an inventory of the property taken into the officer's possession under the warrant does not bar the admission of evidence under Article The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.