Have the police ever knocked on your door, announced their presence and served you with a search warrant? Let's go one step further. If the police conducted a search, think about what they were looking for, what they found and where they found it. The search may not have been proper. If the search was improper and illegal, you could move to suppress evidence that was found.
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In order to obtain a search warrant a police officer must prove that he has probable cause, which is knowledge of certain circumstances and facts that would be sufficient for a reasonable person to believe that an item subject to a search would be found in a particular location at a specified time.
A police officer must prepare a written affidavit stating the facts giving rise to probable cause to issue a warrant. An affidavit is a statement of facts sworn to a judge. It would be a statement about the item and/or place to be searched.
A magistrate or judge must review the affidavit to determine if the police officer has set forth sufficient probable cause. This includes an oath or affirmation by the officer requesting the warrant that the contents of the warrant are accurate, a specific description of the item sought, and a statement of when, where and how the warrant will be executed.
The magistrate or judge must not have participated in the investigation, may not serve as a "rubber stamp" of a warrant request, nor should the magistrate or judge be paid for each search warrant issued. The magistrate or judge may, however, question the police officer to gain adequate knowledge before deciding whether to issue a search warrant. The magistrate or judge must make his determination independent of the police officer's wishes. Therefore the information that the police officer presents must be sufficient to warrant the issuance of a warrant.
The police officer can then conduct the search pursuant to the warrant's terms and subject to the warrant's scope. For the search and seizure of an item to be valid, the officer can only search in places where the item sought can be found. For example, she cannot search for an elephant in a jewellery box and then legally seize drugs found in the jewellery box. If a police officer waits two months to conduct the search, that might be an illegal search, because the search was not executed within the generally-accepted 10-day terms of the warrant.
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