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Inferring Probable Cause: Obtaining a Search Warrant for a Suspect's Home Without Direct Information that Evidence is Inside

NCJ Number
FBI Law Enforcement Bulletin Volume: 71 Issue: 2 Dated: February 2002 Pages: 23-32
Edward Hendrie
Date Published
February 2002
10 pages
This article focuses on probable cause to search the residence of a person who has been arrested for, or is involved in, criminal activity.
To search a residence for evidence of a crime, an officer must have probable cause to believe that the evidence is inside the home. Probable cause offers a range of proofs that occupies a zone, which allows for a flexible standard for probable cause, depending on the circumstances. The more serious the crime, the more latitude the police are allowed when deciding whether probable cause exists. Under the right circumstances, officers may be able to obtain a search warrant for a residence of someone who is closely associated with the defendant. Some courts have concluded that it is so obvious that criminals keep the fruits and implements of their criminal activities in their homes that it is not necessary for police to mention that in their affidavits when obtaining a search warrant for a criminal's residence. Other courts are not so ready to accept that evidence of criminal conduct will be found in a criminal's home without some factual link to the home. Many courts will allow the link to be established by inference drawn from the police officer's training and experience. A minority of courts has ruled that such inferences are insufficient to establish a link between the crime and the criminal's home. Because of these differing approaches, officers should consult with their local legal advisors and frame their affidavits to comply with the legal requirements of their local jurisdiction. 34 endnotes