Issuance and execution of a search warrant has been in news this summer. You have probably read a few articles that mention the standards for the issuance and execution of a search warrant. Foundational to the validity of a search warrant is that the warrant must establish probable cause for the search and seizure.

When a law enforcement officer (or prosecutor), based on his or her experience, knowledge, and observations, has probable cause to believe evidence of a crime can be found in a search of property or person, the officer (or prosecutor) goes to a judge with an application, affirmed under oath, for the issuance of the search warrant. Only a judge can issue the search warrant.

“Probable cause” is a nebulous legal term that the courts still debate to this day. The Supreme Court “frequently has remarked [that] probable cause is a flexible, common-sense standard” wherein the facts available would “warrant a [person] of reasonable caution” to believe evidence of a crime is within the places or persons to be searched.  (Texas v. Brown (1983) 460 U.S. 730, 742.) That Court also described probable cause as a “particularized suspicion”, not a generalized profile. (Ibid.)

This standard is open to interpretation. For example, in a recent case (People v. Delgado, 2nd Appellate Dis., 8th Div.., published May 6, 2022.), a defendant appealed the trial court’s denial of his motion to suppress the evidence on the basis that the search warrant from which the evidence was discovered was not based on probable cause. The Court of Appeal upheld the trial court’s decision but within the decision was a strongly argued dissent by one of the appellate judges.

The dissent focused on the very thin facts used to establish probable cause. Specifically, the facts supporting the warrant were that the defendant was a known gang member and it was known that his house was frequented by other members of the gang. Officers observed a vehicle stop at the defendant’s house where two males got out of the vehicle and went into the house for less than five minutes then left. Officers stopped the vehicle after it left the defendant’s house and found drugs and firearms in the vehicle. Based on these facts, a search warrant was issued for the defendant’s house based on the belief that the defendant was supplying fellow gang members with drugs and firearms.

The dissent argued that the basis for the warrant was mere speculation without any factual underpinning. In other words, the officer’s probable cause had no specific information upon which this belief was formed; rather, it was a generalized profile. This brings us back to the Supreme Court’s statement that probable cause is a particularized suspicion, not a generalized profile. However, the other appellate judges disagreed finding that the search warrant application presented “reasonable support for an inference” the officers had witnessed a transfer of contraband to the vehicle’s occupants.

This case illustrates just how ambiguous probable cause can be. The validity of a search warrant in the first instance stands on probable cause. While the defendant in the Delgado case was not successful in suppressing the evidence, the lack of probable cause to issue the search warrant may provide a person who is arrested and charged based on the evidence found in the search with an opportunity to challenge the prosecution’s case.  If upon a motion to suppress the evidence, the trial court (or an appellate court) agrees that the search warrant did not reach the standard of probable cause, the entire case will, in all probability, be dismissed.

Orange County criminal defense attorney William Weinberg is available for a free consultation to discuss the details of your criminal matter. He will explore all possible defense options, including the potential for a motion to suppress. You may contact him at his Irvine office by calling 949-474-8008 or by email him at bill@williamweinberg.com.