Criminal Law Articles Fundamentals of Search and Seizure Law
Fundamentals of Search and Seizure Law

An Introduction to Search Warrants

A search warrant is an order by a court to search a particularly described place and to seize particularly described property. An affidavit for a search warrant is a document that
sets forth the grounds for issuing a warrant, as well as the factual supporting statements from which a finding of probable cause may be made by a court.

In Michigan, state statutes supply the requirements for search warrants and affidavits in support of search warrants. In addition, state and federal constitutional provisions govern search warrants. The United States and Michigan Constitutions protect against unreasonable searches and seizures by providing that no warrantshall issue without probable cause, supported by oath and affirmation. The Michigan constitutional provision regarding searches and seizures is worded similarly to the Fourth Amendment and generally provides the same protection as the Fourth Amendment.

Affidavits in support of search warrants and search warrants themselves are usually drafted by either the prosecuting attorney or a law enforcement. Unlike arrest warrants, the signature of a prosecuting attorney is not legally necessary to issue a search warrant based upon an affidavit. This is unlike the issuance of an arrest warrant, which requires the signature of a prosecuting attorney.

A magistrate who issues a search warrant must be neutral and detached. This requirement is rooted in both the United States and Michigan Constitutions. A magistrate must disqualify
himself or herself from authorizing warrants if the magistrate is associated in any way with the
prosecution of alleged offenders. Because of his or her allegiance to law enforcement, such a magistrate cannot be allowed to be placed in a position requiring the impartial judgment
necessary to shield the citizen from unwarranted intrusions into his privacy. In other words, an
otherwise duly appointed magistrate who just happens to be connected with law enforcement may not constitutionally issue warrants. A magistrate or judge must disqualify himself or herself if he or she has a pecuniary interest in the outcome. A magistrate or judge must also disqualify himself or herself when one of the parties happens to be his or her client. He or she must also disqualify himself where a party is a relative.

In reviewing the issuance of a search warrant, the reviewing court must determine whether a reasonably cautious person could have concluded that there was a “substantial basis” for finding probable cause. The United States Supreme Court has stated that affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.

The United States and Michigan Constitutions require that a search warrant particularly describe the place to be searched.