Illegal Search and Seizure (cont’d.)
After your criminal defense lawyer has analyzed the facts of your possession with intent to sell, purchase, manufacture, or deliver cocaine case, he/she must determine if any of the exceptions to the warrant requirement exist. If no exceptions exist, then police had a duty to obtain a warrant before searching your property.
Before a judge issues a warrant, the police must first make an application. Applications for a search warrant are sworn to by the police and must include a detailed justification for searching the property. A search warrant application must also be based on new or very recent information. Generally speaking, information that is more than 30 days olds is considered stale.
Search warrant applications must also describe the place to be searched with specificity. A general description will not suffice. This is due to the limited nature of search warrants. Meaning, even when a warrant is issued, the police must still limit their search to the specific property described in the warrant.
For example, if a warrant allows police to search a specific house, located at a specific address, that does not mean police have the right to search any vehicle that may be parked on the street in front of the house. To permit such an additional search, the warrant would need to specify that such a search would be permitted. It would also have to describe, in detail, the specific car to be searched and why.
Assuming the search warrant application explains with sufficiency why the warrant should be issued, and assuming it described the premises/property to be search in great enough detail, a judge will typically grant such requests.
When a criminal defense lawyer attacks the validity of a search warrant, such attack usually comes from the reliability of the information alleged in the search warrant application. For example, if a confidential informant advised police that he saw a kilo of cocaine in someone’s house 3 months ago, such information lacks credibility, if for no other reason, than the fact that it was old. Not to mention, who is to say that this informant was even credible in the first place?
Next, a criminal defense attorney will then analyze the case facts to see if the police overstepped their bounds. Meaning, did the police abide by the search warrant or did they search property that was not described in the warrant? Did they go beyond that which was permitted by the search warrant? If so, there is a problem for the prosecution.