For example, if Person A was photographed selling drugs and an investigation was opened on him, could an investigator say "I have a hunch that Person A may have corresponding with his buyers using email and text, I want a search warrant for his email and text records"?
Also, if Person A had a friend named Person B and Person B was not involved in the drug dealing, could an investigator say "I want all email and text records for Person B because I think that since Person A and B are friends, Person A may have discussed the deal with him"? What is stopping an investigator from saying "I believe the moon is made of cheese so I want to build a ladder to it"? Are there no checks and balances?
What I am not understanding is that Person A can still be prosecuted based on the fruits of an un-just search warrant. The investigator can go about gathering evidence and only later discover it was gathered outside the bounds of the law.
Yes, there are checks and balances involved in getting warrants. Law enforcements gets search warrants by convincing a judge/magistrate that there is "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide their information in the form of an affidavit. If the judge/magistrate believes the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The check comes into play when the government charges someone with a crime--the defense attorney will challenge the sufficiency of the warrant, the affidavits, and the fruits of their labor--the evidence. If the court determines the evidence was obtained outside the bounds of the law--the evidence will not be admitted.
I suspect it would be hard to find a judge/magistrate who would agree that the officer's statement that the moon was a dairy based product and a ladder was needed. If law enforcement could find such a magistrate--it happens--a good criminal defense attorney would know how to get the cheese thrown out.
NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice before the state and federal courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.
Criminal Defense Attorney
If this is a query posed as a result of class work, you are using this forum for an improper purpose.
If the "facts" in your post are in regard to a case where you are the defendant, speak to your counsel. No attorney, the question demonstrates your need of trained assistance
While there are supposed to be "checks and balances" which include close scrutiny of a request for a warrant, there are those judges who will sign any warrant put before them by a cop.
The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
Investigators often proceed on a take now ask later theory.
Investigators often get search warrants based on drugs/phones/texts being connected.
No such thing as an "unjust" warrant.
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