How Do Police Get A Search Warrant?

Search Warrants In New Jersey

In order to obtain a search warrant, the police must present facts which justify a prudent and cautious person to believe that a crime has been, is being, or is about to be committed. Carroll v. United States, 267 U.S. 132, 162 (1925); State v. Macri, 39 N.J. 250, 260 (1963). The necessary evidence is more than mere suspicion of a crime but less than proof beyond a reasonable doubt. State v. Dilley, 49 N.J. 460,463-464 (1967); State v. Mark, 46 N.J. 262, 271 (1966). Probable cause has been further defined as a ‘“well-grounded’ suspicion that a crime has been or is being committed.” State v. Waltz, 61 N.J. 83, 87 (1972). Essentially, the probable cause is also a requisite for many of the warrantless searches discussed in Exceptions to the Warrant Rule, section I.B.4, infra.

Probable Cause

Preferably, an impartial magistrate will determine whether probable cause exists. Johnson v. United States 333 U.S. 10, 13-14 (1948); State v. Demeter, 124 N.J. 374, 381 (1991). The magistrate or judge must review the facts generating probable cause; mere conclusory statements are insufficient to establish probable cause. Whiteley v. Warden, 401 U.S. 560, 564-565 (1971); State v. Marci, 39 N.J. at 257. However, when the circumstances are such that insufficient times exists to present facts to an impartial magistrate or judge, the police officers conducting a warrantless search must know, prior to the search, the facts which give rise to probable cause. Carroll, 267 U.S. at 156.

Hearsay Evidence

In determining whether probable cause exists, a magistrate may consider hearsay evidence. In fact, hearsay, by itself, is sufficient to prove probable cause provided that there is a basis set forth for crediting this hearsay information. Jones v. United States, 362 U.S. 257, 269 (1960); State v. Ebron, 61 N.J. 207, 212 (1972).

In 1964, the United States Supreme Court set forth a two-prong test to be used when evaluating the sufficiency of hearsay information provided by an informant. Aguilar v. Texas, 378 U.S. 108, 114-115 (1964). The first prong is the “basis of knowledge.” To satisfy this prong the information must have been sufficiently specific and detailed so as to indicate the basis of the informants knowledge. Illinois v. Gates, 462 U.S. 213, 267 (1983); State v. Novembrino, 105 N.J. 95, 112 (1987); State v. Perry, 59 N.J. 383, 390-392 (1971). In the second prong, known as the “veracity” prong, the reliability of the informant must be established. This is satisfied by indicating that this informant has provided information in the past that was found to be accurate. Aguilar v. Texas, 378 U.S. at 114; State v. Novembrino, 105 N.J. at 121; State v. Perry, 59 N.J. at 387, 389-390.

In 1969, the United States Supreme Court held that the defects in either of the Aguilar prongs may be remedied by a police investigation which verified the details of the informant’s tip. Spinelli v. United Sates, 393 U.S. 410, 415-416 (1969).

In Illinois v. Gates, 462 U.S. at 238-39, the United States Supreme Court adopted a “totality of the circumstances” standard when determining whether to issue a search warrant. Under this standard, the magistrate is to consider all the circumstances and make a common sense decision as to whether a fair probability exists that evidence of a crime or contraband will be found in a particular place.

New Jersey adopted the Gates rule in 1987 in State v. Novembrino, 105 N.J. at 122-123. In applying the “totality of the circumstances” test, however, the courts still refer to the Aguilar/Spinelli test for guidance. Illinois v. Gates, 462 U.S. at 238-239; State v. Sullivan, 169 N.J. 204, 212 (2001); State v. Lewis, 116 N.J. 477, 486 (1989); State v. Novembrino, 105 N.J. at 123.

If you or your family has had a search warrant served on your personal property, vehicle or person, speak with a qualified criminal defense attorney who is experienced in challenging search warrants in New Jersey. The attorneys at Aiello, Harris, Abate have the experience and knowledge to protect your rights and defend you against criminal charges. For a free initial consultation, call us today at (908) 561-5577 or contact us online.  Your initial consultation is free.