Asked in Criminal Law, Civil Rights and Constitutional Law for Idaho

Q: Do I have the right to know what evidence was given to establish probable cause submitted to the judge in order to obtai

Do I have the right to know what evidence was given to establish probable cause submitted to the judge in order to obtain a search warrant? Can a police officer just tell a judge that he believes illegal activity is going on at so and so's residence with no basis or evidence for probable cause?

1 Lawyer Answer
Kevin M Rogers
Kevin M Rogers
  • Criminal Law Lawyer
  • Boise, ID
  • Licensed in Idaho

A: Yes you have the absolute right to know exactly what the police had given the judge before asking the judge to issue a search warrant. Your lawyer will make a Request for Discovery to the State. The State will send your lawyer the Affidavit of Probable Cause, which was typed up and given to the Court to consider before issuing a SW. A judge is SUPPOSED to independently consider and not issue a search warrant, unless the information is "trustworthy." There is case law, beginning with Aguilar and Spinelli, which spell out when information gained from a CI (confidential Informant) is "trustworthy" or not. If you read the Affidavit of Probable Cause and you think it's "bogus," your lawyer can file a MOTION TO SUPPRESS the information given the cop, on the basis that it was NOT trustworthy. If your motion is granted, the State will probably have to dismiss the case against you. Good luck!

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