If you’ve been keeping up with the news cycle and our coverage of proposed police reform, you know the topic of conducting lawful arrests is quite prevalent right now. To expound upon our recent discussion of search warrants, let’s take a closer look at warrants and, specifically, the affidavit that must accompany a warrant and the three requisite elements in it that make a valid search warrant.
What is an affidavit?
We could spend all day breaking down what an affidavit is and what all goes into it and surrounds it to make it lawful; but to make a long story tolerable, an affidavit is what police provide to a judge or magistrate in order to obtain a warrant—in this case, a search warrant. The affidavit is sworn under oath to be truthful and has three main components of significant importance, so let’s get right to it.
Spell it out for me.
A properly executed affidavit must explicitly state a crime committed, and it must be a crime on the books, meaning in the Texas Penal Code. No officer or citizen can allege a made-up crime or accuse you of anything that is not an actual crime when it comes to a valid affidavit.
Why is this evidence?
A sworn affidavit that accompanies a search warrant must include the why. Why the officers need to search your property or a specific location must be relevant to the alleged crime committed. For instance, a suspect pulled over for alleged drunk driving should have no concern about their home being searched, as the alleged crime was committed in their car and on the road. Places of irrelevance to the suspected crime have no place in a lawful affidavit. Remember those Fourth Amendment rights we’ve discussed? This is where those rights are upheld.
Connect the dots.
We’ve established that a lawful affidavit must explain why you want to search a certain property as it relates to an alleged crime, and it also must include in some specificity that the evidence is likely to be found at another location. For instance, an alleged fraud committed in a place of business would require a detailed account of why the suspect’s home would need to be searched instead of or in addition to their office where the alleged crime was committed. Not every place a suspect has been is fair game for a blanketed search warrant to cover. A lawful affidavit will practically spell out, connect the dots, if you will, why other places or items need to be included in the search warrant.
While these lawful affidavits have been broken down here in three easy steps, they are not, in fact, easy as 1-2-3. Officers and magistrates are on hand 24 hours a day in order to execute search warrants, so it’s especially important to have practiced legal counsel to work just as hard and just as much to ensure your Fourth Amendment rights aren’t violated with a shoddy, poorly executed affidavit.
Continue to tune in to In Your Defense and follow along on our social media channels as we continue to break down search warrants and everything that goes around those. If you have any questions about these issues or fear your Fourth Amendment rights were placed in jeopardy by an unlawful search warrant, please reach out to us at Peek & Toland, so we may help protect your rights and guide you through the criminal defense process.