Challenging a search warrant in North Carolina – When a defendant is facing a criminal trial, what he or she must worry about is the quantity and quality of evidence that the government has against them. As part of the strategy of a criminal defense attorney, he or she will try to limit that evidence against you as much as possible using a motion to suppress, when applicable.
An important source of evidence against defendants is often the evidence obtained when a law enforcement officer executed a search warrant. This is especially true in cases involving drug possession or any other types of possession. Sometimes an attorney may attempt to suppress this evidence by challenging the search warrant. In this blog, we will discuss challenging a search warrant. Like all of our blogs, this is intended for general informational purposes only, and not intended as a substitute for the advice and counsel of a criminal defense attorney.
*Please note that this is a discussion only regarding search warrants, and not regarding warrantless searches.
Suppressing evidence because of a bad search
In order to successfully challenge a bad search, it would be up to the defense to show that there was some violation of rules or law regarding the issuance or execution of the search warrant.
Challenges based on issuance of the search warrant
There are very specific requirements for a law enforcement officer to obtain a search warrant included but not limited to:
- The law enforcement officer must make a formal application to a judicial officer in writing.
- The application must contain an affidavit containing enough facts to show enough probable cause to issue the warrant.
- The judicial officer must be an unbiased neutral third party.
A criminal defense attorney may want to show that the warrant itself was defective by making an argument based on problems and issues concerning the above-mentioned items.
Challenges based on execution of the search warrant
There are specific rules regarding the execution of the search warrant included but not limited to:
- The search warranted must be executed within 48 hours of issuance.
- The person on the premises must be given notice by the officer of who he is and why he is there.
- The warrant must be read to someone that is present and appears to be in control of the premises.
- An inventory of the items seized must be left with the person present who seems to be in control of the premises.
Challenges based on the scope of the search
Regarding what can be searched and what cannot be searched for, below are just some of the rules regarding the law on search warrants and challenging a search warrant:
- Specific items are subject to search (the officer can’t just take anything and everything).
- Persons present cannot be detained and searched unless nothing is found on the premises at first, and then the people present can reasonably be hiding the items sought, on their person.
Like most matters in criminal law, search warrants can be a complicated topic. If you have been charged with a crime in Charlotte, NC, contact us.