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Probable Cause Affidavits, Arrest Warrants, and Search Warrants
Probable Cause Affidavits, Arrest Warrants, and Search Warrants
Copyright © 2017 Pearson Education, Inc. All Rights Reserved
The Fourth Amendment
“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 warrant shall issue, but upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the persons to be seized.”
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Introduction
The Fourth Amendment basically states that the burden of proof shall be probable cause.
Supported by a law enforcement officer’s oath or affirmation, which specifically describes the place to be searched and the persons or things to be seized
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Probable Cause Affidavit
The probable cause affidavit is a document that contains:
The information about the elements of the crime
The suspect’s participation in the crime
An explanation by the affiant supporting the probable cause of for an arrest
Probable cause exists when:
The facts or circumstances of a crime
Within the officer’s knowledge
Would lead a reasonable person to believe that the person listed in the affidavit committed the crime
Supervisors, prosecutors, and judges do not like reading multiple pages looking for your probable cause.
Just state the facts in the affidavit.
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Figure 13-1 Probable Cause Affidavit
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Figure 13-2 Probable Cause Affidavit
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An Arrest Warrant
The arrest warrant is usually completed when the person who committed the crime in not in custody.
If the person you are charging with a crime is in custody, then the probable cause affidavit is all that needs to be completed to book them into jail.
If the person is not in custody, then the probable cause affidavit needs to be completed, as well as the arrest warrant.
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Figure 13-3 Arrest Warrant
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Figure 13-4 Application and Affidavit for Arrest Warrant
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A Search Warrant (1 of 3)
Requirements are similar to a probable cause affidavit and an arrest warrant.
In all three documents:
Probable cause must be established to support the charges.
As well as the venue or jurisdiction, where the search or crime was committed
The search warrant is usually completed when there is probable cause to believe that an item was:
Stolen
Designed to commit a crime
Used in the commission of a crime
Is illegal to possess
Would be material evidence in a subsequent criminal prosecution
Is required, authorized, or permitted by a statute of the state
The search warrant is usually completed when there is probable cause to believe that an item was:
Or is kept, stored, transported, sold, dispensed, or possessed in violation of a statute of the state under circumstances involving a serious threat to the public safety, order, or to the public health
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Copyright © 2017 Pearson Education, Inc. All Rights Reserved
The Right Way to Write
Probable cause affidavits, arrest, warrants, and search warrants are unique documents that require specific techniques.
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Copyright © 2017 Pearson Education, Inc. All Rights Reserved
Tips for Probable Cause Affidavits, Arrest Warrants, and Search Warrants
These forms will be viewed by a judge or magistrate.
You, as the affiant, will have direct control with the on-call judge who will review the document prior to issuance.
Often, your supervisor will not be able to review this document prior to your contact with the judge.
If the judge finds flaws with your document, don’t argue with the judge.
Remember that these types of documents are official orders from the court, and such, they require a specific type of writing.
When in doubt when completing these documents, consult an experienced officer for help.
These types of documents require facts, not opinions.
Never use any type of subjective inferences or deductions in your affidavits.
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