cedar rapids / iowa city criminal defense

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Warrants aren't completely bullet proof-- but they're close and your lawyer should look carefully at the application, affidavit, and the warrant to determine if any defects exist. 

Warrants aren't bullet proof. But they're close. The reason is that they are how we hope law enforcement goes about invading privacy in the United States. After all, defense lawyers will assail a warrantless search as violative of the Fourth Amendment to the United States Constitution, which states:

“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 persons or things to be seized.”

Thus, warrantless searches in Iowa are per se unreasonable unless a prosecutor can prove to a judge by preponderance of the evidence that an exception to the warrant requirement exists in that situation.

So, of course, for the prosecutor to be able to present a warrant to a judge to say, “look, we did it right and the defense lawyer is still complaining,” is gold. But hold on there. We’re not completely out of the hunt just yet. But it will take more than the warrant itself, often left on the countertop of a kitchen after law enforcement makes entry and conducts its warranted search, to determine whether there are any defects in the process.

Warrants are governed by the federal and state constitutions. But they are also governed by statute:

“A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person's oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist.  The application shall describe the person, place, or thing to be searched and the property to be seized with sufficient specificity to enable an independent reasonable person with reasonable effort to ascertain and identify the person, place, or thing.  If the magistrate issues the search warrant, the magistrate shall endorse on the application the name and address of all persons upon whose sworn testimony the magistrate relied to issue the warrant together with the abstract of each witness' testimony, or the witness' affidavit.”

While warrants are not completely unassailable, the burden is the defendant’s to show that they are unsupported by probable cause, that execution was defective in some way, or that the affiant acted with a reckless and material disregard for the truth, as examples. If you or a loved one have been the target of a search warrant, contact David A. Cmelik Law PLC at 319-389-1889 or https://www.daclawfirm.com for a free initial consultation today. However, remember that reading a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.

Cedar Rapids Criminal Lawyer: Can a defendant challenge a search warrant signed by a judge?

by David A. Cmelik Law PLC