Can Search Warrants Be Issued by Phone?
A search warrant issued by phone, known as a telephonic warrant, is an actual tool law enforcement can use – but typically only in emergency situations.
Telephonic warrants are those obtained by law enforcement during out-of-courtroom hours, such as in the evening, during holidays, or on the weekend. Law enforcement must contact a district attorney who will then get in touch with the court to receive these warrants.
Calling and requesting one is not enough. Instead, law enforcement still must have probable cause and give that information to the district attorney who will then request the warrant over the phone from a judge.
Not all states allow telephonic warrants, but New Mexico does. Police can obtain a search warrant over the phone according to the Supreme Court.
How the Law Allows Telephonic Warrants and the Changes It Makes to the Procedure
Typically, a district attorney or law enforcement would see a judge in person, present evidence and an affidavit, and request a search warrant. With a telephonic version, the judge does not have to see law enforcement’s sworn statement that probable cause exists prior to issuing the over-the-phone warrant.
According to the Supreme Court ruling, these telephonic search warrants are allowed as long as the district attorney’s presentation or statement of facts proved probable cause over the phone. They can read the sworn statement of the officer requesting that search warrant over the phone while submitting a hard copy of that sworn statement later (see State v. Boyse).
How Do You “Show” Probable Cause Using Audio?
You may wonder how you can show probable cause over the phone. While the law states that you must “exhibit” or “show” probable cause, the Supreme Court decided that the plain meaning of the word is used. In the New Mexico Constitution, it states that no search warrant can be issued unless there is a written showing of probable cause that includes an affirmation or oath.
The Supreme Court decided that the plain meaning of the word “show” means to present it. However, that does not mean that something must be presented in-person to the judge. Instead, to show it, they can make it apparent or clear. While visual is one way to show, the Supreme Court decided that district attorneys and law enforcement can “show” probable cause via audible and other sensory means as well – which is why they allowed the telephonic warrant and evidence to proceed in State v. Boyse.
The judge must believe that law enforcement has probable cause, even if explained over the phone, to search a person’s home. And that evidence would be obtained to connect the suspect to a crime. When law enforcement uses telephonic warrants illegally, the evidence obtained from that warrant may be excluded in court. Any further evidence that was obtained from that warrant’s search can also be suppressed. For example, law enforcement finds contact information for a drug dealer while searching a distributor’s home. They then use that information to obtain another search warrant for the dealer’s home so that they may charge them with a drug crime. However, it later turns out that the initial warrant for the distributor’s home was obtained illegally; therefore, all evidence in that search, as well as the search of the dealer’s home, would become inadmissible.
Telephonic Warrants Are Legal but Can Be Fought Just Like Paper Warrants
Just like the paper form of a search warrant, a telephonic search warrant can be argued against.
Likewise, a telephonic search warrant does not give law enforcement the power to search for anything and everything. Instead, just like with a physical warrant, they are limited to the scope of the telephonic warrant – which the judge will specify when they grant one.
If a telephonic search warrant is issued for a home to search for illegal firearms, then law enforcement has permission to search that home. However, while searching, they found an envelope on the desk of the home and found illegal drugs in that envelope. In this case, the telephonic search warrant allowed law enforcement to only look for illegal firearms – and a firearm would not fit in a small envelope in a person’s desk. Therefore, a defense attorney could argue against the illegal substances found and suppress that evidence.
Likewise, the time of day the telephonic search warrant is issued matters. With a telephonic warrant, the purpose of these warrants is to allow law enforcement to conduct a search during off-hours. However, they cannot use telephonic means to obtain a warrant only to wait until mid-day the next day (when courts are open) to conduct the actual search. A defense attorney could question the validity of that search warrant because law enforcement could have waited to obtain one during the day if the investigation was not pressing.
Did Law Enforcement Conduct a Telephonic Search Warrant of Your Property? Contact a Defense Attorney Today
If law enforcement searched your private property using a telephonic search warrant or paper warrant, contact a defense attorney immediately. Just because law enforcement has a search warrant does not mean you are guilty of a crime. Likewise, it does not mean that you would be convicted of a crime based on the evidence they find.
Instead, the best thing you can do when you are presented with a search warrant is to contact a defense attorney immediately.
The team at New Mexico Criminal Law Offices is here to help you with your case. We have defended clients facing search warrants and serious criminal charges, and we will aggressively protect your rights. Whether you are being accused of a crime or you are just a suspect, now is the time to act.
Schedule a free case evaluation with our team by contacting our law office or filling out the online contact form, and a team member will be in touch shortly.