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Reasonable Search and Seizure

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  • Travis
    Hello: What is considered reasonable search and seizure for a Search Warrant? My house was raided a few weeks ago for marijuana. One of my roommates had weed
    Message 1 of 2 , Sep 22, 2005
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      Hello:


      What is considered reasonable "search and seizure" for
      a Search Warrant? My house was raided a few weeks ago
      for marijuana. One of my roommates had weed in his
      bedroom and that was the only place that the cops
      found weed. Unfortunately, the cops busted two of my
      doors looking for weed.

      The cops told me that they had someone watching my
      house before they raided it, so they should have known
      that I was the only person in the house at the time.
      They still went ahead and broke two locked doors when
      they could have just asked me to unlock the doors
      instead. I think it is unfair for them to break my
      doors for marijuana.

      I was not charged with anything since I did not know
      about my roommates weed. He was charged with
      possession.

      Is there anything that I can do to find out whether
      the cops did a reasonable search and seizure? The
      judge signed off on the Search Warrant, and I am not
      allowed to talk to him about the Search Warrant.

      Can anyone help me understand what cops can reasonably
      do in a search?

      I will look forward to your response.


      Sincerely,

      Travis

      Rice Lake, WI


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    • Christopher Dilts
      Hello This depends on the circumbstances. Usually general in order to get a warrent the officer either needs testimony from a crediable source that criminal
      Message 2 of 2 , Oct 4, 2005
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        Hello

        This depends on the circumbstances. Usually general in order to get a warrent the officer either needs testimony from a crediable source that criminal activity is present in the dwelling or see it themselves. Then the warrent must contain what , where , and whom the police are to search. Also it must be executed a certain way depending on the state. Below is some case law that will help. Remember if this warrent was invalid or the search illegal your freind would more then likely be able to use a motion to suppress to get the illegal substance suppress leaving the state with no evidence in which to convict.The key here was there probable cause for the warrent if not warrent fails to be legal. So do some research on the subject and the motion at your local law library. Hope this helps

        State v. Schaefer, 668 N.W.2d 760
        Key Number graphic349 SEARCHES AND SEIZURES
        Key Number
graphic349II Warrants
        Key Number graphic349k111 k. Factual showing, in general.
        Wis.App.,2003
        While the warrant-issuing judge may draw reasonable inferences from the evidence presented in the affidavit in support of a search warrant, an affidavit that contains nothing but the legal conclusions of the affiant is insufficient to establish probable cause.
        U.S.C.A. Const.Amend. 4.


        Link to KeyCite yellow flag negative history
        State v. Multaler, 632 N.W.2d 89
        Wis.App.,2001
        A judge issuing a search warrant must be apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched.


        Link to KeyCite citing references
        State v. Marten, 477 N.W.2d 304
        Wis.App.,1991
        Elaborate specificity is not required in search warrant affidavit, and police officers are entitled to support of usual inferences which reasonable people draw from facts.
        U.S.C.A. Const.Amend. 4.


        Link to KeyCite history
        State v. Higginbotham, 471 N.W.2d 24
        Wis.,1991
        Warrant-issuing judge's determination of probable cause cannot be upheld if affidavit provides nothing more than legal conclusions of affiant.


        Link to KeyCite citing references
        Ritacca v. Kenosha County Court, 280 N.W.2d 751
        Wis.,1979
        Supreme Court must determine whether magistrate issuing search warrant was apprised of sufficient facts to excite honest belief in reasonable mind that objects sought are linked with commission of crime and that they will be found in place to be searched.


        Link to KeyCite citing references
        Bast v. State, 275 N.W.2d 682
        Wis.,1979
        Issuance of search warrant to seize exemplars of defendant's head hair for comparison purposes with hair found in ski mask assailant was wearing at time of attempted robbery was supported by probable cause indicating that defendant was found near scene of crime within half an hour after its commission, that defendant's physical description corresponded with that of robber, that coat worn by robber was found near scene, and that defendant was not wearing a coat despite weather when he himself was found near scene.
        U.S.C.A.Const. Amend. 4.


        Link to
KeyCite citing references
        Bast v. State, 275 N.W.2d 682
        Wis.,1979
        Conclusions of affiant set forth in an affidavit for search warrant cannot be considered as a basis for issuance of warrant.
        U.S.C.A.Const. Amend. 4.


        Link to KeyCite citing references
        Bast v. State, 275 N.W.2d 682
        Wis.,1979
        Type of conclusion referred to in prohibition against considering a conclusion of an affiant as a basis for issuance of a search warrant is a conclusion that suspect committed crime.
        U.S.C.A.Const. Amend. 4.


        Link to KeyCite citing references
        State v. Starke, 260 N.W.2d 739
        Wis.,1978
        Fourth Amendment does not deny law enforcement officers support of the usual inferences which reasonable men draw from evidence although it requires that such inferences be drawn by neutral and detached magistrate.
        U.S.C.A.Const. Amend. 4.


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history
        State v. Williams, 177 N.W.2d 611
        Wis.,1970
        Use of statutory language defining offense is not proscribed in drafting complaint seeking search warrant; however, all that is required for constitutionally sufficient complaint is that complaint contain essential facts constituting offense charged.
        W.S.A.Const. art. 1, �� 8, 11; U.S.C.A.Const. Amends. 4, 14.


        Link to KeyCite yellow flag negative history
        State v. Davidson, 170 N.W.2d 755
        Wis.,1969
        Personal observation of officer, who entered home owned jointly by victim and her husband and found severely bruised and lacerated body of victim, large number of broken mason jars near body, and broken glass and blood throughout area, and statements made by next door neighbor, whose suspicions were roused by blood stain and broken window on rear door of home, was sufficient to justify issuance of warrant to search husband's automobile.


        Link to KeyCite citing references
        Morales v. State, 170 N.W.2d 684
        Wis.,1969
        On application for search warrant, magistrate was justified in accepting as trustworthy testimony of witness who testified in support of application as to facts of which he was personally aware and magistrate was not required to inquire into witness' credibility.
        U.S.C.A.Const. Amend. 4.


        Link to KeyCite citing references
        State v. Mier, 35 N.W.2d 196
        Wis.,1948
        To authorize issuance of a search warrant, facts sufficient to satisfy the magistrate must be presented, and such requirement is not met by a belief in the mind of the complaining witness, whether an officer or a civilian.


        Link to KeyCite citing references
        State v. Brockman, 283 N.W. 338
        Wis.,1939
        The evidence upon which magistrate may act in issuing search warrants must be sufficiently detailed and of such character as to permit magistrate to come to his own conclusion whether probable cause exists, and must not be so meager as to constitute merely conclusions of applicant and invasion of judicial function of magistrate.
        St.1937, �� 363.01, 363.02(9); Const. art. 1, � 11.


        Link to KeyCite citing references
        Kraus v. State, 276 N.W. 303
        Wis.,1937
        The evidence upon which magistrate may act in issuing search warrant may be circumstantial and be based upon information and belief (
        St.1935, �� 363.01, 363.02; Const. Art. 1, � 11).


        Link to KeyCite citing references
        Kraus v. State, 276 N.W. 303
        Wis.,1937
        The evidence upon which magistrate may act in issuing search warrant must be sufficiently detailed and of such character as to permit magistrate to come to his own conclusion whether probable cause exists, and it must not be so meager as to constitute merely conclusions of applicant and invasion of judicial function of magistrate (
        St.1935, �� 363.01, 363.02; Const. Art. 1, � 11).


        Link to KeyCite
citing references
        Anderson v. State, 212 N.W. 628
        Wis.,1927
        Complaint for search warrant should be couched in language enabling officer to identify property to be searched with reasonable certainty.
        W.S.A.Const. art. 1, � 11.


        Link to KeyCite citing references
        Anderson v. State, 212 N.W. 628
        Wis.,1927
        Complaint on which search warrant was issued, omitting village containing place to be searched, held to describe premises sufficiently.
        W.S.A.Const. art. 1, � 11.

        Link to KeyCite history
        State v. Lindgren, 687 N.W.2d 60
        Key Number graphic349 SEARCHES AND SEIZURES
        Key Number graphic349II Warrants
        Key Number graphic349k113 Probable or Reasonable Cause
        Key Number graphic349k113.1 k. In general.
        Wis.App.,2004
        When considering an application for a search warrant, issuing magistrate is to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
        U.S.C.A. Const.Amend. 4.


        Link to KeyCite history
        State v. Lindgren, 687 N.W.2d 60
        Wis.App.,2004
        The quantum of evidence required to establish probable cause to issue a search warrant is less than that needed to bind over for trial at a preliminary hearing.
        U.S.C.A. Const.Amend. 4.


        Link to KeyCite history
        State v. Lindgren, 687 N.W.2d 60
        Wis.App.,2004
        "Probable cause" for issuance of a search warrant is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior.
        U.S.C.A. Const.Amend. 4.
        See publication Words and Phrases for other judicial constructions and definitions.


        Link to KeyCite citing references
        State v. Harwood, 671 N.W.2d 325
        Wis.App.,2003
        In the search context, the quantum of evidence required to establish probable cause is a "fair probability" that contraband or evidence of a crime will be found in a particular place.

         

        Link to KeyCite history
        State v. Loranger, 640 N.W.2d 555
        Wis.App.,2001
        The warrant-issuing court commissioner must be apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched.
        U.S.C.A. Const.Amend. 4; W.S.A. Const. Art. 1, � 11.


        Link to KeyCite history
        State v. Marquardt, 635 N.W.2d 188
        Wis.App.,2001
        Search warrant may issue only when a neutral and detached magistrate or judge finds probable cause to believe that evidence of a crime may be found in a particular place.
        U.S.C.A. Const.Amend. 4; W.S.A. Const. Art. 1, � 11.

        State v. Kraimer, 283 N.W.2d 438
        Wis.App.,1979
        Before an officer may enter and search a home, with or without a warrant, he must have probable cause to believe a crime has been committed, and person who commits it, or evidence, is in the home to be entered.
        U.S.C.A.Const. Amend. 4.

         

         




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