Searches and seizures made under a warrant are the most difficult to challenge. The reason for this is that such searches are presumed to be valid and the burden to prove otherwise is upon the defense. This is in contrast to warrantless searches, which are presumed to be illegal unless the state can prove otherwise.
A warrant can only be issued after a finding by a judge that there is “probable cause.” Therefore, before a warrant can be issued, the law enforcement officer who is seeking the warrant must submit a “probable cause” affidavit to the judge. Probable cause “exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion.” State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967), cert. den., 389 U.S. 1054 (1968)). It is not a rigid concept; rather, it is a “flexible, nontechnical concept.” State v. Novembrino, 105 N.J. 95, 120 (1987) (citation omitted). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid.
The New Jersey Attorney General has mandated that each law enforcement application for a search warrant be made under the guidance of either a deputy attorney general or an assistant prosecutor. Accordingly, each application for a search warrant is carefully crafted by an experienced lawyer before it is presented to a judge. This usually guarantees that the warrant will hold up on later challenge, which is made by a suppression motion. Worse yet for defendants, findings of probable cause made by judges are entitled to high deference on appeal. Therefore, the review is not whether a judge reviewing the facts on appeal feels probable cause did or did not exist, but instead the test is whether the reviewing judge believes the issuing judge abused his or her discretion in finding probable cause.
If you believe that you have been subjected to an illegal search by police, call a defense attorney experienced in suppression motions for an evaluation of your case.