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How do police get a search warrant?

Believe it or not, police don’t issue search warrants. Judges do. In South Carolina, search warrants are usually issued by magistrates. These important judges also handle traffic tickets and lower-level criminal cases like simple assault, plus civil cases involving a limited amount of money.

Here’s how it works, or how it’s supposed to.

The United States Constitution’s Fourth Amendment allows search warrants only if supported by probable cause. South Carolina law requires the police to provide probable cause in an affidavit, a sworn statement. The affidavit can be supplemented by sworn testimony before the issuing judge.

The judge determines probable cause based on whether the affidavit proves a “fair probability” that evidence of a crime will be found in the place to be searched. At a minimum, the affidavit must reasonably describe all of these:

  • The place to be searched. This must be described very precisely.
  • A general idea of what evidence the police expect to find there, beyond just saying “evidence of a crime”—like “digital scales, bookkeeping records related to illegal drug transactions, and illegal drugs including but not limited to marijuana and cocaine or its derivatives.”
  • The reason police expect to find the evidence there. And that reason must clearly tie the place to recent criminal activity, or the warrant will not be valid.

What to Do If Your Home or Vehicle Is Named in the Warrant

There’s three things to remember if you’ve been served with a search warrant:

  • The purpose of a warrant is to protect your privacy and your rights. Requiring a warrant based on probable cause keeps police from just barging into our homes to take whatever they want.
  • Even if the warrant is issued, you can contest its validity later. If a judge finds it invalid, all the evidence taken as a result of the warrant is thrown out. That can mean a dismissal of your case or a reduction of charges you can live with.
  • You need a skilled criminal defense attorney—and you need one now. The police just went through your personal stuff, with a judge’s approval. They’re after you. And you’ll never have any hope of contesting the warrant without a legal tactician on your side.

Here’s more on search warrants and how they can be invalidated.

If you’re the subject of a search warrant or you got charged with a crime based on one, contact us right now so we can start building your defense.