September 27, 2022

Let’s talk search warrants

Law enforcement can not search your house without a warrant. Law enforcement does not issue a search warrant. They have to ask for it. Search warrants are pretty much the same everywhere. They are a standard prosecutorial practice. When the cops think you have something that is illegal, evidentiary, or otherwise important to a criminal prosecution, they prepare an application for a search warrant along with any attachments in support of the search warrant and present it to a judge. A judge is required to review the application for a search warrant and determine if there is probable cause to issue the warrant. The judge is to make a determination of probable cause–an independent determination.

Now we know that all warrants are not upheld. Sometimes evidence is suppressed because the application may be deficient. Having a warrant determined to be insufficient is not often; it is a rarity. What judge wants a warrant overturned indicating he or she erred in the probable cause determination. Normally the probable cause exists for the warrant. Now the fact that a warrant has been issued and served does not necessarily mean that anything will be found that will lead to a criminal prosecution. Occasionally the authorities are in error, but not often.

In the case of Mar-a-lago, a judge would have determined there was probable cause for the warrant. Having contested numerous search warrants as a criminal defense attorney, I have some familiarity with them and the process. I can just see the look on the face of the judge they approached to get a warrant for Trump’s house. The first thing a judge would say is “Are you kidding!” I think it would take an act of real courage to issue such a search warrant even with uncontestable probable cause. The blow back will be tremendous no matter what the consequences of the search. I know a lot of judges who issue warrants but I don’t know many who would be standing in line to sign off on this one.

So, we will simply have to wait and see.

Richard E H Phelps II