The Fourth Amendment states, "...No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing ... the persons or things to be seized." Each warrant must be specific enough in what it is seeking, clearly identifying the place to be search and specifically describing the items to be seized with the warrant.
If a warrant is too broad or fails to correctly identify specific items adequately, it may be suppressed — and the evidence obtained will also suppressed in trial.
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At Hark and Hark, we have extensive experience closely reviewing warrants to determine if they are valid, filing suppression motions if they are not.
There is a distinct difference between an application for a search warrant and the search warrant itself. Certain documents must accompany both the application for the search warrant and the actual warrant. Mere reference to an affidavit of probable cause and its attachments identified in either the application for a search warrant or the search warrant, but not attached to either document, renders the warrant invalid.
When the face of a search warrant does not include a description of the items to be seized, and those documents are not incorporated in the face of the warrant, the warrant cannot satisfy the Fourth Amendment's particularity requirement. A warrant that contains no description — specific, vague or otherwise — of the items to be seized is not over broad.
These mistakes are not categorized as merely negligent clerical errors. In federal cases, the application for a search warrant and the actual warrant are both typically reviewed by a trained United States Attorney who reviewed all filings and concurrently prepared the motion to impound the warrant.
As well, these warrants and their application are reviewed by a trained United States Magistrate. The concurrent filings of the warrants, applications for the warrants and the motion to impound effectively preclude a defendant from reviewing the warrant application until the motion to suppress stage.
Rule 41 of the Federal Rules of Criminal Procedure address search warrants, their execution, and service of the warrant on a defendant. A non-constitutional violation of Rule 41 is cause to suppress evidence when the defendant has been prejudiced or the violation is intentional and deliberate.
Prejudice has been defined as that which offends concepts of fundamental fairness or due process. The Rule 41 violation is not of constitutional magnitude unless (1) there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the rule.
Careful review of all post-discovery requests for sealed or impounded documents and the warrant and application are necessary to ensure proper investigation of a defendant's constitutional rights.
The cases clearly establish a framework within which motion to suppress should be filed in every case. Where there is search and seizure with a warrant, the totality of the circumstances dictating innocence will prevail and compel a court to proactively suppress evidence illegally seized and preclude criminal trials on illegally secured evidence.
The government knows the procedural rules for drafting and serving search warrants. A judge's order compelling service is clear. The government cannot deliberately and with prejudice to a defendant's rights chose to ignore the rules of court, the warrant's specific language, and court orders.
There is accountability and consequences for this unconstitutional and illegal conduct. We have litigated these cases and won.
Lawyers With Experiencing Invalidating Bad Warrants
To arrange a free initial consultation about the charges against you and how we can fight them for you, contact Hark and Hark online or call us toll free at 877-4-HARK-LAW (877-442-7552).
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