§ 10.03 SEARCH WARRANT REQUIREMENTS

• Jurisdiction: United States

§ 10.03. Search Warrant Requirements

No warrant is valid unless it is supported by probable cause, a requirement considered in detail in Chapter 8. What follows are other warrant requirements.

[A] "Neutral and Detached Magistrate"

Although the Fourth Amendment does not expressly so require, a warrant must be issued by a "neutral and detached magistrate."⁶³ This requirement is not satisfied if the person issuing the warrant is a member of the executive branch, such as the state attorney general, rather than a member of the judiciary.⁶⁴

Even if a warrant is issued by a member of the judiciary, the magistrate must be neutral and detached, rather than a "rubber stamp for the police."⁶⁵ Thus, an unsalaried magistrate who receives a fee for each warrant issued, but no compensation for applications denied, lacks the requisite institutional detachment.⁶⁶ A warrant is also invalid if the issuing magistrate, by behavior in a particular case, manifests a lack of neutrality. For example, a judge who accompanies officers to a bookstore suspected of selling obscene material, and who there inspects the materials to determine which ones are obscene, is "not acting as a judicial officer but as an adjunct law enforcement officer."⁶⁷

On the other hand, the magistrate or judge issuing a warrant need not be a lawyer. In Shadwick v. City of Tampa,⁶⁸ the Supreme Court approved the issuance of misdemeanor arrest warrants by non-lawyer court clerks. Although Shadwick dealt only with misdemeanor arrests, the Court cited felony search warrant cases in support of its holding. Indeed, the Supreme Court in Illinois v. Gates⁶⁹ observed without criticism that "search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of 'probable cause.' "

[B] "Oath or Affirmation"

The Fourth Amendment provides that warrants must be "supported by Oath or affirmation." Therefore, a warrant defective for want of probable cause cannot be saved by post-warrant proof that the police had additional information that they failed to disclose to the judge.⁷⁰

A more complex situation arises when an officer provides false information, under oath, to the magistrate.⁷¹ Under limited circumstances outlined in Franks v. Delaware⁷² a defendant may mount a post-search attack on a facially valid warrant on the ground that, but for the falsity in the affidavit, a warrant would not have been issued.

According to Franks, an affidavit supporting a search warrant is presumed valid. A defendant is not entitled to a hearing to attack the affidavit (and, thus, the warrant) unless he makes a "substantial preliminary showing"⁷³ that: (1) a false statement was included in the affidavit (e.g., the affiant did not observe the events that he swore to have seen, did not have the conversations he claimed to have had, or fabricated the existence of a confidential informant);⁷⁴ (2) the affiant made the false statement "knowingly and intentionally" or with reckless disregard for the truth;⁷⁵ and (3) the false statement was necessary to the magistrate's finding of probable cause.

If these allegations are proved by a preponderance of the evidence, the warrant is void, and the fruits of the search would be excluded from evidence at the criminal trial. As stated in Franks, "it would be an unthinkable imposition upon [the magistrate's] authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment."

Franks does not authorize similar impeachment of a "nongovernmental informant." Therefore, a warrant is not voidable if an informant lies to the affiant, who then innocently or negligently passes this false information along to the magistrate. The rationale for drawing this distinction is that the credibility of the informant must be shown in the probable-cause determination process,⁷⁶ whereas the veracity of the affiant ordinarily is assumed because he takes an oath of truthfulness.

[C] "Particularity"

[1] In General

The Fourth Amendment provides that warrants must "particularly describ[e] the place to be searched, and the persons or things to be seized." Particularity is required in order to avoid the abuses exemplified by the general warrants and writs of assistance used in the English and colonial common law.⁷⁷ A warrant that lacks particularity...