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SEARCH WARRANT

An official order authorizing a search of someone's home or other location. The controlling principles governing search warrants are generally provided by the U.S. Constitution's Fourth Amendment.

The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on "'the probability, and not a prima facie showing, of criminal activity . . . .' " Illinois v. Gates (1983) 462 U.S. 213, 235; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 ["To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required."]

"knock and announce" requirement of 18 U.S.C. section 3109

Under 18 U.S.C. section 3109, an officer is permitted to "break open any outer or inner door of a house . . . to execute a search warrant," but only if "after notice of his authority and purpose," he is refused admittance.

There are three interests that the "knock and announce" requirement of section 3109 is intended to serve. This requirement (1) reduces the potential for violence to both police officers and the occupants of the house into which entry is sought (safety interest); (2) guards against the needless destruction of private property (property interest); and (3) symbolizes respect for individual privacy (privacy interest). Id. at 588.

A defendant has standing to challenge the legality of a search on Fourth Amendment grounds only if he has a "legitimate expectation of privacy" in the place searched. Rakas v. Illinois, 439 U.S. 128, 148 (1978). The defendant bears the burden of establishing his legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

A mere possessory interest in the item seized does not by itself confer standing to challenge the search of the place in which the item was found. Legal "possession of a seized good [is not] a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched." United States v. Salvucci, 448 U.S. 83, 92 (1980). Thus, there is no standing simply because someone was charged with a possessory crime.

A warrant requiring the officer to whom it is addressed, to search a house or other place therein specified, for property therein alleged to have been stolen; and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. It should be given under the hand and seal of the justice, and dated.

The Constitution of the United States, Amendment IV, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Lord Hale recommends great caution in granting such warrants. 1. That they be, not granted without oath made before a justice of a felony committed, and that the complainant has probable cause to suspect they are in such a house or place, and his reasons for such suspicion. 2. That such warrants express that the search shall be made in day time. 3. That they ought to be directed to a constable or other proper officer, and not to a private person. 4. A search warrant ought to command the officer to bring the stolen goods and the person in whose custody they are, before some justice of the peace.

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