When a judge authorizes a search warrant, there has to be sufficient proof in the affidavit to attest probable cause; however is hearsay evidence enough to qualify?
Probable cause is required to obtain a search warrant. Probable cause can include the officer’s own observation such as: seeing illegal contraband through an open door while talking with a suspect; hearing loud noises presumed to be from a violent act taking place; and even smelling illegal activity such as marijuana smoke or other drug use. Beyond these observations made by the actual office, probable cause can also consist of hearsay – a statement overheard by a random witness.
According to Utah Courts Dictionary of Legal Terms, hearsay is “second-hand evidence, generally consisting of a witness’s testimony that he/she heard someone else say something.” Like a bad game of telephone, information by hearsay could end up muddled and far from the truth. Another concern with hearsay besides being an innocent misunderstanding is the fact that hearsay could be nothing more than a fabricated plot to cause undue stress on another person.
Protection from false info
To avoid untrue or mistaken information, there are certain steps that must be taken before a judge can accept hearsay. The following is Utahcourts.gov explanation how hearsay is evaluated and what is required for hearsay to be acceptable for a search warrant:
1. “Veracity” of the informer. This means the informer providing the hearsay must be credible. The affidavit must contain sufficient facts indicating the informer is believable or truthful. For example, the affidavit should state the reasons why the informer believes that the seizable items are located in the place to be searched and the reasons why the police officer believes that the informer is reliable.
o To satisfy the veracity test, the affidavit must establish that: (a) the informer is a truthful person; (b) the informer has a particular motive to be truthful about the specific allegation (for example, it is against the informer’s interest); or (c) the allegations of criminality are sufficiently corroborated.
2. “Basis of knowledge” of the informer. This means that the informer has a factual basis for the information furnished. The affidavit must contain sufficient facts indicating the basis for the informant’s knowledge. For example, the affidavit should describe the accused’s criminal activity in sufficient detail for the judge to determine that the allegation is something more substantial than casual rumor.
o To satisfy the basis of knowledge test, the affidavit must establish that: (a) the informer gathered the information of illegal activity in a reliable fashion; or (b) the informer’s information is based on either personal knowledge or on reliable hearsay received by the informer. “
Hearsay usually not admissible in court
Although there are some guidelines concerning what hearsay is considered valid, it is still an alarming thought that someone’s word is enough evidence for authorities to obtain a search warrant. Fortunately, hearsay statements typically won’t hold up later on in court. This is due to the defense being unable to cross examine the informant after the hearsay statement is admitted. The same would go for an anonymous tip. While that tip may lead officials in the right direction to catch a crime, there is no way to use it in court as the defendant would not be able to question the person accusing them of a crime. IF hearsay is allowed before the judge and/or jury, Utah Courts states that “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”
Speak with an attorney
For anyone facing charges for evidence obtained during a hearsay driven search warrant, it is crucial to contact a criminal defense attorney. An experienced defense attorney can help their clients fully understand their 4th Amendment rights regarding searches and seizures and what their rights are during trial.