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Often times, a person will face charges based on what the police find at their house when they execute a search warrant. A search warrant is a legal document issued by a judge or the justice of the peace that authorizes the police to perform a search of a specific place to look for specific things that the police believe will be evidence of a crime. It is very important to keep in mind that search warrants are location specific. This means, for example, that even if the police have overwhelming grounds to believe a person is a drug dealer, they must also have sufficient grounds to believe that evidence of drug trafficking will be found in the specific place they are wanting to search. If those grounds do not exist, they cannot get the warrant even though they know a certain person is dealing drugs.

To get a search warrant, police need to have reasonable grounds to believe two things: 1) an offence has been committed and 2) evidence of that offence will be found in the specific place they are seeking a warrant for. Reasonable grounds to believe is a legal standard that is higher than suspicion, but lower than proof beyond a reasonable doubt. This means that the police do not need to prove beyond a reasonable doubt that an offence has been committed and that evidence of that offence will be found in the specific location before a judge will issue the warrant, however their grounds needs to rise past the level of suspicion or possibility.

When a person argues that a search warrant is invalid the judge is required to review the information sworn in support of the warrant to determine of there was sufficient grounds for the warrant. The reviewing judge is not supposed to substitute his or her opinion of the sufficiency of the grounds for that of the originating judge (remember the search warrant would not exist in the first place if the original judge or justice of the peace had not granted it) but instead is to review the information with deference to determine if the information was enough so that the original judge COULD have issued the warrant. This is different than a judge merely substituting his or her opinion of the information for that of the original judge and deciding that he or she WOULD not have issued the warrant on those same grounds.

To successfully challenge a warrant, it is often helpful if the defence is able to point to things in the information that were stated in an inaccurate or misleading way by the police. If the police do this, it often leads to the warrant being ruled invalid and the evidence excluded from the trial. Also, the police are required to make full and frank disclosure of ALL the material information known to them about the investigation when they attempt to get the warrant. This means that the police must not conveniently leave information out that hurts or takes away from their grounds for the search. To give an example of this, in a case Mr. van der Walle won that involved a warrant for a grow op, the police officer told the justice of the peace that while he was near the target property he smelled growing marihuana. What the police officer had left out was the fact that his partner, a more experienced officer who was with him at the time , did NOT smell marihuana while standing near the property. The judge ruled that this was a material omission because the Justice of the Peace should have been told the full picture which was that only one of two of the officers had smelled marihuana. By concealing this, the police officer had violated his duty to make full and frank disclosure of all the material facts. Because of this, and a number of other problems with the warrant, the judge ruled the warrant invalid an excluded all the evidence which led to an acquittal.

Search warrants are technical and to have a bona fide chance at winning a case that requires a successful challenge to a warrant, you should hire a lawyer that has done this kind of work in the past and has a proven track record of success. Mr. van der Walle is one such lawyer as he has won many cases that required him to successfully attack the validity of a warrant. If you need to call Mr. van der Walle to discuss your case, please do so anytime.

Photo: Police File Police Magazine


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