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Challenging A Search Warrant

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So you already know that a search of your car or home without a warrant is not valid without a legal exception. For that reason, many people put a lot of stake in search warrants.

People believe that if the police have obtained a search warrant, your 4th Amendment rights are no longer important. People mistakenly believe that a search warrant is a surefire way around your right against unlawful search and seizure and that once one is issued, you have lost your ability to challenge the manner in which your property was searched.

That is not true. Everything about a warrant - from its contents to its very language - is subject to legal challenge. Over the years, our state and federal courts have crafted guidelines that law enforcement officers must follow when obtaining a search warrant. If the officers do not follow those guidelines, the warrant is invalid and the evidence obtained from it cannot be used against you.

Search warrants most often come into play in drug trafficking cases. As a Miami trafficking attorney and Broward trafficking attorney, I see warrants most often in cases involving marijuana grow houses.

When a warrant is issued and signed by a judge, the document itself will outline (with great specificity) the locations to be searched and the items the police are looking to seize. Failure of the warrant's author to carefully articulate that information in the body of the warrant could result in an invalid warrant.

Also, you may challenge the truthfulness of the warrant. That is, in every search warrant, the author (or affiant) must include an affidavit providing probable cause for the issuance of the warrant. This is what the judge will rely upon when deciding whether to sign it.

Through the discovery process, your criminal defense attorney may determine that the police lied in the affidavit. Your attorney may file a specialized motion that attacks a warrant on the grounds that the probable cause affidavit was based on untruthful information. Since the probable cause affidavit is the sole ground upon which a judge can sign a warrant, by alleging that that affidavit is false, you are telling the court that the judge relied on false information when signing the warrant.

These are just two manners in which a search warrant can be challenged.

The point I am trying to make is that police will get search warrants. Experienced detectives - especially those in the Miami-Dade Police Department's Narcotics Unit - know how to write warrants that can pass the judicial smell test. At first. Once the warrant is executed, you are arrested, and your charges are filed, a separate judge - upon your attorney's motion - may review the warrant for defects. That judge has the authority to declare the warrant invalid.

I have come to learn that cops don't need much more than an "anonymous tip" and the "smell of marijuana" to get a warrant for a grow house. So if the cops knock on your door and you tell them (correctly) to go and get a warrant, chances are that they will.