On April 19, 2012, police officers entered my home with a key, which I consider unconstitutional. They did have a search warrant, but the warrant had a first name of Tim and no last name, someone I do not know. I can be reached at...(252)258 3096. ...

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On April 19, 2012, police officers entered my home with a key, which I consider unconstitutional. They did have a search warrant, but the warrant had a first name of Tim and no last name, someone I do not know.

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DakotaLegal's picture

 

 
We’re going to talk about what “unreasonable” searches and seizures mean: including the important phrase, “fruit of the poisonous tree.” We’ll discuss what it means to “go behind the face of a search warrant.”
 
You may be eligible for low cost or even free legal help. Here are some good places to ask for affordable legal aid: a North Carolina law school http://www.law.unc. edu/academics/ clinic/default.aspx or low-cost clinic http://www.legalaidnc.org/ or perhaps the Pro Bono services of a local NC attorney http://www.probono.net/nc/.
 
The place to start challenging a warrant: the way a North Carolina DA may try to make sure they avoid having evidence suppressed. Look at both the form a properly executed warrant uses (including a specific affidavit), and compare it with what you were given. http://www.ncdistrictattorney.org/ caselawbank/ Search%20and%20Seizure-Anticipatory-final.pdf.
 
Here are the five basic requirements for what must be in a valid North Carolina warrant:
 
§ 15A-246. Form and content of the search warrant.
http://law.onecle.com/north-carolina/15a-criminal-procedure-act/15a-246.html  
 
A search warrant must contain:
(1) The name and signature of the issuing official with the time and date of issuance above his signature; and
(2) The name of a specific officer or the classification of officers to whom the warrant is addressed; and
(3) The names of the applicant and of all persons whose affidavits or testimony were given in support of the application; and
(4) A designation sufficient to establish with reasonable certainty the premises, vehicles, or persons to be searched; and
(5) A description or a designation of the items constituting the object of the search and authorized to be seized.
 
It’s point number four above that weakens the warrant’s validity in this case. There is a problem, however, in that North Carolina is unusual in allowing a search of any “third person” (such as a guest) on the premises…if the premises were properly identified. That part of the warrant (describing third party searches) law is included below. To go behind the face of a warrant means (a) making the police prove there was strong reason, whether from an informer or police investigation, to grant the warrant, (b) that the judge or magistrate acted properly in issuing it, and (c) that the police stayed in the four corners of what’s allowed by the wording of the warrant.
 
If there was a provable defect in the warrant or its process, you also have a right to sue the police in a civil proceeding.
 
For argument’s sake, I’m assuming the search did uncover some incriminating evidence, of some kind. Let’s look at how to keep that evidence from being used unconstitutionally against you, if you can prove a violation of your (4th Amendment) Constitutional rights to be secure in your home and possessions.
 
The Fruit of the Poisonous Tree
 
The US Supreme Court laid down this important principle and it applies to state criminal prosecutions too. One problem in North Carolina, as noted above, is the broad allowance of seizing some unexpectedly discovered items in the execution of a valid warrant.
 
§ 15A-253. Scope of the search; seizure of items not named in the warrant.
http://law.onecle.com/north-carolina/15a-criminal-procedure-act/15a-253.html
 
The scope of the search may be only such as is authorized by the warrant and is reasonably necessary to discover the items specified therein. Upon discovery of the items specified, the officer must take possession or custody of them. If in the course of the search the officer inadvertently discovers items not specified in the warrant which are subject to seizure under G.S. 15A-242, he may also take possession of the items so discovered.
 
 
Often, the best arguments you have are to prove there were some defects in the original warrant, which means anything obtained that may be “poisonous fruit.” There are cases where the owner (not being named) of the property was one of the reasons the warrant was invalid: look at State v. Taylor, N.C. App., 664 S.E.2d 421, and you can find similar cases here: http://www.ncdistrict attorney.org/caselawbank/Search%20Warrants-final.pdf.

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DakotaLegal's picture

 

 
We’re going to talk about what “unreasonable” searches and seizures mean: including the important phrase, “fruit of the poisonous tree.” We’ll discuss what it means to “go behind the face of a search warrant.”
 
You may be eligible for low cost or even free legal help. Here are some good places to ask for affordable legal aid: a North Carolina law school http://www.law.unc. edu/academics/ clinic/default.aspx or low-cost clinic http://www.legalaidnc.org/ or perhaps the Pro Bono services of a local NC attorney http://www.probono.net/nc/.
 
The place to start challenging a warrant: the way a North Carolina DA may try to make sure they avoid having evidence suppressed. Look at both the form a properly executed warrant uses (including a specific affidavit), and compare it with what you were given. http://www.ncdistrictattorney.org/ caselawbank/ Search%20and%20Seizure-Anticipatory-final.pdf.
 
Here are the five basic requirements for what must be in a valid North Carolina warrant:
 
§ 15A-246. Form and content of the search warrant.
http://law.onecle.com/north-carolina/15a-criminal-procedure-act/15a-246.html  
 
A search warrant must contain:
(1) The name and signature of the issuing official with the time and date of issuance above his signature; and
(2) The name of a specific officer or the classification of officers to whom the warrant is addressed; and
(3) The names of the applicant and of all persons whose affidavits or testimony were given in support of the application; and
(4) A designation sufficient to establish with reasonable certainty the premises, vehicles, or persons to be searched; and
(5) A description or a designation of the items constituting the object of the search and authorized to be seized.
 
It’s point number four above that weakens the warrant’s validity in this case. There is a problem, however, in that North Carolina is unusual in allowing a search of any “third person” (such as a guest) on the premises…if the premises were properly identified. That part of the warrant (describing third party searches) law is included below. To go behind the face of a warrant means (a) making the police prove there was strong reason, whether from an informer or police investigation, to grant the warrant, (b) that the judge or magistrate acted properly in issuing it, and (c) that the police stayed in the four corners of what’s allowed by the wording of the warrant.
 
If there was a provable defect in the warrant or its process, you also have a right to sue the police in a civil proceeding.
 
For argument’s sake, I’m assuming the search did uncover some incriminating evidence, of some kind. Let’s look at how to keep that evidence from being used unconstitutionally against you, if you can prove a violation of your (4th Amendment) Constitutional rights to be secure in your home and possessions.
 
The Fruit of the Poisonous Tree
 
The US Supreme Court laid down this important principle and it applies to state criminal prosecutions too. One problem in North Carolina, as noted above, is the broad allowance of seizing some unexpectedly discovered items in the execution of a valid warrant.
 
§ 15A-253. Scope of the search; seizure of items not named in the warrant.
http://law.onecle.com/north-carolina/15a-criminal-procedure-act/15a-253.html
 
The scope of the search may be only such as is authorized by the warrant and is reasonably necessary to discover the items specified therein. Upon discovery of the items specified, the officer must take possession or custody of them. If in the course of the search the officer inadvertently discovers items not specified in the warrant which are subject to seizure under G.S. 15A-242, he may also take possession of the items so discovered.
 
 
Often, the best arguments you have are to prove there were some defects in the original warrant, which means anything obtained that may be “poisonous fruit.” There are cases where the owner (not being named) of the property was one of the reasons the warrant was invalid: look at State v. Taylor, N.C. App., 664 S.E.2d 421, and you can find similar cases here: http://www.ncdistrict attorney.org/caselawbank/Search%20Warrants-final.pdf.