Legal Memorandum: Conditions for a Search Warrant in AL

Issue: What is conditions must be met to apply for a search warrant in Alabama under . R. Crim. P. 3.8(b)?

Area of Law: Criminal Law, Litigation & Procedure
Keywords: Search warrant; Conditions; Liberty of citizen
Jurisdiction: Alabama, Federal
Cited Cases: 445 So. 2d 974; 316 So. 2d 233; 498 N.W.2d 17
Cited Statutes: Ala. R. Crim. P. 3.8(b), Rule 3.8(b)(1), Rule 3.8(b)(4), Rule 3.8(b)(2); Fed. R. Crim. P. 41(c)(2)
Date: 04/01/2013

To obtain a valid warrant, both the applying officer and issuing judge must strictly comply with the statute or rule authorizing warrants.  As stated by the Alabama Supreme Court, “[t]here is no common law authorizing search warrants.  Statutes authorizing searches are strictly construed against the prosecution [and] in favor of the liberty of the citizen.”  Ex parte Turner, 792 So. 2d 1141, 1147 (Ala. 2000) (quoting Kelley v. State, 55 Ala. App. 402, 403, 316 So. 2d 233, 234 (Ala. Crim. App. 1975)) (emphasis added).

Ala. R. Crim. P. 3.8(b) is entitled “Warrant Upon Oral Testimony.”  Rule 3.8(b)(1) provides that under certain circumstances, a judge “may issue a warrant based upon sworn testimony communicated by telephone.”  (Emphasis added).  Further, Rule 3.8(b)(4) provides that:

When a telephone caller informs the judge or magistrate that the purpose of the telephone call is to request a warrant, the judge or magistrate shall immediately place under oath each person whose testimony forms the basis of the application and each person applying for the warrant.

(Emphasis added).

This fundamental requirement of an oath is not only consistent with the title of Rule 3.8(b) (“Warrant Upon Oral Testimony” (emphasis added)) but, more significantly, is required by the Fourth Amendment (“no warrants shall issue, but upon probable cause, supported by oath or affirmation”).  See Anderson v. State, 445 So. 2d 974, 976 (Ala. Crim. App. 1983) (“[F]or a search warrant to be valid […]

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