By James E. Novak, P.L.L.C.
Elements of a Valid Search Warrant
Under Arizona Laws, Constitution; and the Fourth Amendment of the United States Constitution, a person has protection from unreasonable search and seizures of themselves or their property.
In order for the warrant to be valid the following elements must exist:
Search Warrant rules have exceptions as a result of case law and other constitutional rights challenges over the years. In other words, circumstances may exist, which compel police or investigators to proceed with a search in absence of search warrant.
Some exceptions include:
In order to obtain a valid search warrant, police must submit or provide a statement or affidavit to the presiding Judge or Magistrate on call. Their request must include the justifiable reasons and “probable cause” under .A.R.S. 13-3924 & 13-3925. The warrant must include the specific items or person they are looking for. In the case of a DUI where police wish to do a DUI blood test, they will inform the judge that the suspect has refused to allow them to conduct a formal breath test; but preliminary tests such as a Standard Field Sobriety Test (SFST), and Preliminary or Portable Breath Test (PBT) have led to the need to conduct a DUI blood test to obtain Blood Alcohol Content (BAC) results.
Invalid Searches
Searches conducted by police without a valid search warrant are presumed to be invalid, unless the court finds that the search was reasonable under extenuating circumstances. If a search is determined by the court to be invalid, then any evidence obtained under that warrant may be suppressed, or not admitted for use against a suspect. An invalid search is considered unconstitutional or a violation of a person’s constitutional rights.
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13-3925. Unlawful search or seizure; admissibility of evidence; definitions
A. Any evidence that is seized pursuant to a search warrant shall not be suppressed as a result of a violation of this chapter except as required by the United States Constitution and the constitution of this state.
B. If a party in a criminal proceeding seeks to exclude evidence from the trier of fact because of the conduct of a peace officer in obtaining the evidence, the proponent of the evidence may urge that the peace officer's conduct was taken in a reasonable, good faith belief that the conduct was proper and that the evidence discovered should not be kept from the trier of fact if otherwise admissible.
C. The trial court shall not suppress evidence that is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer as a result of a good faith mistake or technical violation.
D. This section does not limit the enforcement of any appropriate civil remedy or criminal penalty in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure.
E. This section does not apply to unlawful electronic eavesdropping or wiretapping.
F. For the purposes of this section:
1. "Good faith mistake" means a reasonable judgmental error concerning the existence of facts that if true would be sufficient to constitute probable cause.
2. "Technical violation" means a reasonable good faith reliance on:
(a) A statute that is subsequently ruled unconstitutional.
(b) A warrant that is later invalidated due to a good faith mistake.
(c) A controlling court precedent that is later overruled, unless the court overruling the precedent orders the new precedent to be applied retroactively.
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Elements of a Valid Search Warrant
Under Arizona Laws, Constitution; and the Fourth Amendment of the United States Constitution, a person has protection from unreasonable search and seizures of themselves or their property.
In order for the warrant to be valid the following elements must exist:
- “Probable cause” A.R.S. 13-3924 & A.R.S. 13 -3925;
- Must be issued by Arizona; A.R.S. 13- 3911
- In the State’s name; A.R.S. 13- 3911
- Signed by a Judge or magistrate; A.R.S. 13- 3911
- Directed to an officer vested with the authority to make an arrest; A.R.S. 13- 3911
- Specify the person or place to be searched; A.R.S. 13- 3912
- Limited to specified listed item (s) police are being searched for; A.R.S. 13- 3912
- Include a specific time and date A.R.S. 13- 3917 & A.R.S. 13- 3918
Search Warrant rules have exceptions as a result of case law and other constitutional rights challenges over the years. In other words, circumstances may exist, which compel police or investigators to proceed with a search in absence of search warrant.
Some exceptions include:
- Searches that are incidental to an arrest;
- The evidence could too quickly be dispelled or destroyed while police wait for the a valid warrant to be issued;
- The suspect provides consent;
- The situations may jeopardize police officer’s safety; or put others in imminent danger, if delays occur pending issuance of a valid search warrant.
In order to obtain a valid search warrant, police must submit or provide a statement or affidavit to the presiding Judge or Magistrate on call. Their request must include the justifiable reasons and “probable cause” under .A.R.S. 13-3924 & 13-3925. The warrant must include the specific items or person they are looking for. In the case of a DUI where police wish to do a DUI blood test, they will inform the judge that the suspect has refused to allow them to conduct a formal breath test; but preliminary tests such as a Standard Field Sobriety Test (SFST), and Preliminary or Portable Breath Test (PBT) have led to the need to conduct a DUI blood test to obtain Blood Alcohol Content (BAC) results.
Invalid Searches
Searches conducted by police without a valid search warrant are presumed to be invalid, unless the court finds that the search was reasonable under extenuating circumstances. If a search is determined by the court to be invalid, then any evidence obtained under that warrant may be suppressed, or not admitted for use against a suspect. An invalid search is considered unconstitutional or a violation of a person’s constitutional rights.
Criminal Attorney for Mesa AZ Defense
If you were arrested for DUI or other crime, you should consult a Mesa criminal defense attorney as soon as possible, whether or not your arrest involved a search and seizure. If your rights were violated, there may be defenses that can be used that could lead to suppression of evidence, reduction in charges or dismissal of your case. Your attorney will defend your charges and protect your rights through the criminal justice process.resources
13-3925. Unlawful search or seizure; admissibility of evidence; definitions
A. Any evidence that is seized pursuant to a search warrant shall not be suppressed as a result of a violation of this chapter except as required by the United States Constitution and the constitution of this state.
B. If a party in a criminal proceeding seeks to exclude evidence from the trier of fact because of the conduct of a peace officer in obtaining the evidence, the proponent of the evidence may urge that the peace officer's conduct was taken in a reasonable, good faith belief that the conduct was proper and that the evidence discovered should not be kept from the trier of fact if otherwise admissible.
C. The trial court shall not suppress evidence that is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer as a result of a good faith mistake or technical violation.
D. This section does not limit the enforcement of any appropriate civil remedy or criminal penalty in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure.
E. This section does not apply to unlawful electronic eavesdropping or wiretapping.
F. For the purposes of this section:
1. "Good faith mistake" means a reasonable judgmental error concerning the existence of facts that if true would be sufficient to constitute probable cause.
2. "Technical violation" means a reasonable good faith reliance on:
(a) A statute that is subsequently ruled unconstitutional.
(b) A warrant that is later invalidated due to a good faith mistake.
(c) A controlling court precedent that is later overruled, unless the court overruling the precedent orders the new precedent to be applied retroactively.
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