3.5.1 Challenging the Probable Cause Determination in a Warrant

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

3.5.1 Challenging the Probable Cause Determination in a Warrant

There are two principal challenges to search warrants. The first attacks the specific factual assertions in the affidavit supporting the warrant. A search warrant is invalid if the defendant makes a substantial showing of all of the following: (1) a false statement was included in the affidavit by the affiant; (2) the statement was necessary to find probable cause (i.e., with the false statement, probable cause exists, but without the false statement, probable cause is lacking); and (3) the affiant knowingly or recklessly included the false statement.⁸⁷

A second, somewhat more successful challenge questions whether the facts in the affidavit establish probable cause. The test for many years had been a two-pronged analysis:⁸⁸ (1) the warrant application must contain the informant's basis of knowledge establishing probable cause and (2) the warrant application must contain information establishing her reliability. The Supreme Court abandoned this formulation and...