California Search Warrant by Darren Chaker

Darren Chaker affidavit for warrant
Search Warrant basics by Darren Chaker.
Darren Chaker affidavit for warrant

Search Warrant basics by Darren Chaker.

Darren Chaker reviews search and seizure law in California and how a search warrant is obtained. Pursuant to the Fourth Amendment of the Unites States Constitution, a search warrant must be supported by probable cause. However, the showing required to establish probable cause is not beyond a reasonable doubt. “The task of the issuing magistrate is simply to make a practical, commonsense 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.” (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)

An affidavit in support of a search warrant must describe with reasonable particularity the place to be searched and the places to be seized. (People v. Alvarado (1967) 255 Cal.App.2d 285, 291; People v. Barthel (1965) 231 Cal.App.2d 827, 832.) The test for the latter is “whether the warrant places a meaningful restriction on the objects to be seized.” (People v. Alvarado, supra, 255 Cal.App.2d at p. 291;People v. Barthel, supra, 231 Cal.App.2d at p. 832.)

Darren Chaker notes on a motion to quash a search warrant, “the question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040.) This is accomplished by reviewing only the “four corners” of the warrant, and no other outside sources. (See United States v. Luong (9th Cir. 2006) 470 F.3d 898, 904-05;People v. Costello (1988) 204 Cal.App.3d 431, 451.)

Darren Chaker also notes, probable cause “is a fluid concept – turning on the assessment of probabilities in a particular factual case….” (Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.) Second, because affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation,” “[t]technical requirements of elaborate specificity once exacted under common law pleadings have no proper place ….” (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.)

The search warrant affidavit “must provide a substantial basis from which a magistrate can reasonably conclude there is a fair probability that the place to be searched contains contraband or evidence of a crime.” (People v. Hernandez (1994) 30 Cal.App.4th 919, 923; see also Illinois v. Gates, 462 U.S. at p. 238, 103 S. Ct. at p. 2332 [affidavit must establish a “fair probability that evidence of a crime will be found in a particular place.”].) “The question-similar to every inquiry into probable cause-is whether all of the facts …, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” (Florida v. Harris (2013)     U.S. , 133 S.Ct. 1050, 1053, 185 L.Ed.2d 61; see also Illinois v. Gates, supra, 462 U.S. at pp. 235-36, 103 S.Ct. at p. 2331 [warrants are properly issued “on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.”)

Last, Darren Chaker reminds readers that, “[L]ogical inferences may be drawn and the magistrate may consider matters of common knowledge concerning human behavior.” (People v. Miller (1978) 85 Cal.App.3d 194, 200; see also Illinois v. Gates, supra, 462 U.S. at p. 240, 103 S.Ct. at p. 2333 [magistrates are free to “draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant”].) In People v. Ulloa (2002) 101 Cal.App.4th 1000, 1007, [*13]  the Court of Appeal upheld a warrant to seize all computers within the defendant’s home even though there was no direct evidence in the affidavit that the defendant had a home computer, because “home computers are now common;” and because the defendant had been communicating with a minor by computer, and “it was reasonable to assume that the computer would contain relevant incriminating information, and that the computer would be located in defendant’s home.”

About the Author

Darren Chaker
Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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