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Requirements in Obtaining a Search Warrant

by Expert Professor-Yvonne | 17 Mar 2017

The Fourth Amendment of the U.S. Constitution enumerates the requirements before a search or an arrest warrant may issue, i.e. the existence of "probable cause," "supported by oath or affirmation, particularly describing the place to be searched and the persons to be seized" (FindLaw website, n.d.). A search warrant must be issued by an impartial and objective judicial officer or judge. It is the neutral, objective and detached determination by the Court of whether facts alleged constitute probable cause is what it makes it pass the test of validity. Probable cause shall be determined based on the affidavit and evidence that the applicant shall submit to the court which consequently should lead any reasonable and prudent person to believe that the crime has been committed and the issuance of a warrant is justifiable (FindLaw website, n.d.).

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Another requirement is ‘particularity' which refers to the particular description of the items and things to be searched and seized. This serves as a limitation to the scope of the warrant such that it does not leave discretion on the part of the police officer serving it. It must also specify the items or objects to be seized. Finally, in the execution of the warrant, the police officer must observe the statutory requirements relative to the manner of execution and time of execution such as the announcement requirement.

The U.S. Supreme Court overturned the conviction in the case of Ybarra v Illinois because the search and seizure violated the Fourth Amendment. The police officers failed to execute the search warrant properly. Albeit there is a search warrant issued for the search of the tavern, the search was made by police officers of a person found in the premises but was not named in the search warrant to be searched. Notwithstanding the fear expressed by the police officers of the harm to themselves, a ‘patdown' of the person should be based on probable cause [Ybarra v. Illinois, 444 U.S. 85 (1979)]. Thus, the Court ruled that in implementing and carrying out a search warrant for the search of the premises and of persons named therein, police officers should not "automatically search someone else found in the premises" (FindLaw website, n.d.).

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