Elements of a Warrant
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The Fourth Amendment provides that "... no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A typical search warrant contains two elements: the search warrant itself (which is a court order permitting the search) and an application for a search warrant (an affidavit of facts supporting the search warrant). - The search warrant sets forth the place where the search is to take place. It includes a description of the property that will be searched, including the address and other specific details about the property. The search warrant also includes a description of property that will be seized if found at the location. The description of property to be seized can be extensive, and can include actual evidence of a crime (such as drug paraphernalia), as well as business records, telephone records and personal effects. Property to be seized must either be used in a way that constitutes or facilitates a criminal offense, or would be material evidence to a criminal prosecution.
- An application for a search warrant must include a sworn affidavit, typically from a police officer, that sets forth the reasons for conducting a search. The affidavit of a police officer will typically include the officer's personal observations of criminal conduct. An officer will also typically list his or her training in specialties of law enforcement (such as detecting gang activity or drug trafficking) as a means of bolstering his or her credibility as to probable cause before a magistrate.
- A law enforcement officer may also include statements made by informants to the officer in the search warrant application. These statements are "hearsay," and while they are generally inadmissible at trial, a magistrate may use hearsay statements in finding probable cause. A law enforcement officer using hearsay statements in a search warrant application must submit evidence to establish both the truthfulness of the informant and the factual basis for the informant's knowledge.
- A magistrate or judge reviewing a search warrant application must find probable cause in order to approve the search warrant. The magistrate must find, from the facts submitted by the law enforcement officer in the search warrant application, that there are sufficient facts and evidence for a reasonable person to conclude that a crime has taken place or will take place, and that evidence of that crime will be found at the address listed on the search warrant application. If the magistrate finds probable cause, the magistrate signs the search warrant, and law enforcement officials may conduct the search pursuant to the search warrant.
