SEARCH WARRANT ANALOGY TO SLAUGHTER: ANDY McCARTHY
NRO — The Corner
Wednesday, March 17, 2010:Search Warrant Analogy to Slaughter [Andy McCarthy]
As is the case with the constitutional requirements that must be followed for a bill to become a law, there are constitutional requirements before a search can be conducted. Agents are requried to obtain a search warrant from a court before most ordinary domestic law-enforcement searches. But getting a search warrant from a court is not the end of the matter.
The federal courts have held that the warrant is considered invalid if the Fourth Amendment requirements have been blatantly violated. If, for example, it is abundantly clear that the warrant was not supported by probable cause, or where the warrant fails specifically to describe the place to be searched or the items agents are permitted to search for, it is illegal for the agents to enforce the warrant.
That is, even if the police pretend that they followed the Constitution’s procedure, it will not help them that a judge has signed the warrant and that the warrant ostensibly authorizes them to conduct a search at a location. If they have not adhered to the Constitution’s minimum conditions for a lawful warrant, the warrant is a nullity, the agents must not enforce it, and if they enforce it, the victims of wrongful enforcement can sue — not just sue the government but sue the individual police or agents who’ve violated their rights.
Just a thought.
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