Many people are familiar with search warrants, but only so far as what they have seen on television or in the movies. The actual process in Utah to get a search is quite involved. In fact, the process is set this way in order to protect the rights of citizens from unlawful search and seizure.
The two elements of a search warrant are the application for the warrant and the search warrant itself.
The affidavit is a sworn statement of facts that shows a judge that there is probable cause — which means substantial evidence — to issue the search warrant. It also contains a description of the place to be searched and what specifically is being sought, such as marijuana or cocaine. A judge must agree that there is probable cause for the search warrant. The judge cannot simply accept that the person who made the affidavit is correct — no matter how reliable or honest he or she may appear.
The affidavit is almost always written up by a police officer.
His or her direct observations are included, as are his or her reasons for believing there is evidence of criminal activity. If an informant is used to collect information, that may also be included. The informer must be credible and have a factual basis for whatever information he or she provides. If the identity of the informer is not revealed, then there must be information in the affidavit that explains why this is important. The affidavit must also contain “timely information,” so that the probable cause is current.
A judge may decide to decline to issue the search warrant, but if it is issued, then the execution of it must be done within 10 days. A copy of the warrant and affidavit must be given to the property owner and if any property is taken, an inventory must be completed.
As you can see, the process for getting a search warrant is quite extensive.
However, there are times when a search warrant is issued based upon unreliable information or insufficient probable cause. If this happens, the property taken might end up being excluded from being used as evidence against someone in a criminal trial. An attorney can provide more information about search warrants and your criminal charges.
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