Section 6.18 Search Warrants—Generally

• Library: DWI 2014

Warrants are judicial orders commanding law enforcement to conduct a search for evidence of a crime specific to the requirements outlined in the warrant. Before a warrant will issue, however, there must be a judicial finding of probable cause from the totality of the circumstances asserted by oath or affirmation by law enforcement. State v. Neher, 213 S.W.3d 44 (Mo. banc 2007). The assertion of probable cause will be in the form of an affidavit containing facts sworn to by a member of law enforcement or a prosecuting attorney who is seeking the authority to conduct a search for evidence of a crime. The application for a search warrant must be in writing and is usually accompanied by an affidavit whereby the affiant verifies the facts asserted in the application by oath or affirmation. See § 542.276, RSMo Supp. 2012.

The issuing judge must make a “common-sense” determination whether the circumstances set forth in the affidavit establish a “fair probability” that evidence of a crime will be found in a specific place. Neher, 213 S.W.3d at 49 (citing State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990)). A strong preference for searches to be...