We've talked a lot about warrantless searches previously. Police can conduct a search for evidence of a crime without a warrant if their search happens within a small set of circumstances. However, once police get a search warrant, their search is perfectly legal as long as they abide by any limitations in the warrant.
But how to police get a warrant?
If you're suspected of committing a crime, you'll rarely be aware of the warrant process, so there's little that you can do to help yourself. Nevertheless, it's an integral part of a police investigation that can be helpful to understand.
Neutral and Detached Magistrates
When police want to conduct a search, but can't make it fit within the circumstances that lets them search without a warrant, they need to go to a “neutral and detached” magistrate to convince him or her that the police have probable cause to believe criminal activity is going on.
A magistrate is a member of the judicial system, often a judge. However, it can't be any judge. A magistrate can only issue a search warrant if he or she is not somehow involved in the investigation. If a judge suspects a neighbor of a crime, then that judge cannot be the one to sign off on a search warrant because that judge is not “neutral and detached.”
Showing Probable Cause
Once police have a neutral and detached magistrate, they have to persuade that magistrate that they have the probable cause of criminal activity necessary to perform a search. The police do this by giving the magistrate affidavits – sworn statements, written on paper – of police officers and other witnesses who have information about the criminal activity. Police then ask the magistrate to issue a warrant allowing them to search a particular place, for particular things.
If the magistrate is satisfied that there is probable cause to conduct this search, he or she will issue the search warrant.
This process used to take a significant amount of time, usually over a day. However, since Maine has put the warrant process online, allowing police and magistrates to communicate via email, this has sped up considerably.
General Warrants are Prohibited
Once a magistrate has issued a search warrant, police don't have the power to search everywhere for anything. They need to stick to the limitations on the search warrant. These limitations have to be specific, allowing police to only search particular places, and to look for particular things. General warrants – warrants that are so vague that they allow law enforcement to do basically whatever they want – are unconstitutional.
Defense Attorney William T. Bly
Even though you rarely see it in action, warrants are an integral part of the criminal investigation process. However, mistakes can happen during this process that endanger your rights as a citizen. Skilled criminal defense attorneys, like William T. Bly, can challenge warrants in court on a variety of different issues, which can prevent the prosecutor from proving the case against you.
If you're facing criminal charges in the state of Maine, contact the office of William T. Bly online or at (207) 571-8146.