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Among the numerous kinds of decisions made
during a judicial career, the seemingly simple act of signing
a search warrant may prove one of the most perplexing and consequential
for the judge. With virtually no notice and only one side appearing
in the courtroom or office, the judge confronted with a search
warrant application must instantly determine whether the warrant
and supporting affidavit satisfy the complex legal requirements
for allowing authorities to search a residence, a business
or a vehicle. If the judge issues the search warrant when those
requirements have not been met, then innocent citizens may
suffer the intrusion and humiliation of an unlawful search
of their premises, or evidence obtained from the search may
be suppressed in court and a criminal may avoid prosecution
or have a conviction overturned on appeal. An error made during
a trial or while ruling on a motion can often be corrected
later or with a new trial. But the damage from an unlawfully
authorized search may prove irreparable if a unique opportunity
to catch a criminal with the evidence is lost, or if, as on
rare occasions, an innocent citizen or officer is injured.
To protect the public
against historical abusive searches by authorities, the
founding fathers incorporated into the Fourth Amendment
of the Bill of Rights the requirement that "no Warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
seized." New Mexico’s Constitution contains similar
language in Article II, Section 10,
and adds a requirement of a written showing of probable
cause. The U.S. Supreme Court and the appellate courts of
New Mexico have issued numerous decisions over the years on
whether search warrants issued by judges have complied with
these constitutional mandates. A set of rules has been developed,
both in printed rules governing criminal procedure and in
caselaw, defining when search warrants and their supporting
affidavits are and are not adequate under these constitutional
provisions. These rules attempt to answer when a search warrant
meets the three primary constitutional
requirements:
1. Is the warrant
based upon probable cause?
2. Is there a sufficient oath or affirmation?
3. Does the warrant particularly
describe the persons or property to be seized?
The answers to these questions
can involve some very complex analysis of information and
language presented to the judge at the time the warrant
is requested. Appellate attorneys and reviewing courts
may spend hours analyzing the significance of the words
the judge was given only a few moments to consider in deciding
whether to authorize the search. It is thus important that
judges have ready access to resources that will assist
them in making these determinations. Goal of This Program
This Internet guide to
search warrants is intended to serve as one resource for
judges. It is designed to combine explanatory text with
an interactive question-and-answer format addressing the
most frequently occurring problems in this area of law.
It is written in language that should be accessible to
lawyer and non-lawyer judges alike, since many warrants
are issued by magistrates. It offers a checklist that judges
can review on the spot to determine whether applications
meet legal requirements. Because it is on the Internet,
it is accessible twenty-four hours a day to the judge who
has on-line capability, and can be updated almost instantly
as new cases are published or new rules adopted. Putting
this resource on the Internet also provides users with
access to many related resources, including texts of rules
and court decisions, as well as related text material. History
of This Project
This Internet program on search warrants
has been developed by the Rozier E. Sanchez Judicial Education
Center of New Mexico (JEC) as our pilot Internet tutorial.
Since we began work on this project, the State Justice Institute
of Alexandria, Virginia awarded JEC a grant to enlarge this
pilot project to include much more material for judges and
court personnel. We are placing this pilot program into service
now, so that it can be available for judges to use immediately.
We want to hear the reaction of judges to this program so
that we can modify it to be more user-friendly or to address
additional issues, and so that we can design our expanded,
SJI-funded program with the benefit of user experience and
comment. Return
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