The key check on blanket search and seizures is the 4th Amendment requirement of a search warrant. Yet, if you read the current news, it becomes pretty clear that local, state, and federal agencies pretty much try to avoid the process like Superman avoiding kryptonite.
The search warrant was intended to create a road block and force authorities get a second pair of unbiased eyes to examine the circumstances and say, “Yes, I think you have enough evidence that a crime has been committed to pursue a search.” Or, “No, you need to check yourself.”
One thing is clear: a warrant is required. It’s not kinda sorta required; its not a mere guideline; it’s not just a good practice. It is absolutely required for a search and seizure And, no where in the U.S. Constitution or state constitutions are there any excuses, clauses, exceptions, or rationalization to not use one.
What is Needed for a Warrant
Understanding a few terms will help understand the legal requirements when it comes to investigating crimes.
Each one of these legal terms is layered to build up to the final indictment of an individual based off of evidence and intent of an accusation.Each layer of the legal definitions enable what tools an investigators can use to explore whether a crime has been committed.
Reasonable suspicion exists when a reasonable person under the circumstances, would, based upon specific and articulable facts, suspect that a crime has been committed.
For examples, click here from Flexyourrights.org
Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for arrest) and that evidence of the crime is present in the place to be searched (for search).
For examples, click here from flexyourrights.org
A search warrant is a judicially approved document that authorizes law enforcement officials to search a particular place. To obtain a search warrant, a police officer must provide an account of information supporting probable cause to believe that evidence of a crime will be found in a particular place or places. The officer must also make a list of the particular places to be searched and the items sought. Finally, the officer must swear to the truthfulness of the information. The officer presents the information in an Affidavit to a magistrate or judge, who determines whether to approve the warrant.
Where did the Search Warrant Originate?
The reason for such legal definitions is to protect against innocent people from being tried for a crime they didn’t commit. It is used to weed out those not involved in a crime and narrow in on the actual perpetrators. During colonial times, a general warrant was used. Sometimes this is called a writ of assistance. British soldiers were deputized with the sweeping ability to barge into anyone’s door and search for any considered contraband with no suspicion a crime had been committed.
A general warrant refers to a warrant providing any authority figure’s broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched.
The founders found these writs abhorrent, and insisted on a provision in the Bill of Rights defining the basic requirements for warrants, limiting them in a way to make them very specific. There are four basic requirements for federal warrants.
1. Searches shall not be unreasonable.
2. All warrants shall be based on probable cause.
3. Within the warrant a lists of place to be search, the person or things seized were sh all be described.
4. An oath or affirmation must support that warrant.
Dangers of Dragnet Surveillance
Dragnet surveillance is illegal because it does not follow the checklist to determine a crime has been committed.