! Interesting article !
And forgive me, but this is going to be a very long post. I have wondered, as have other people here, about what law enforcement could have that was determined to be "probable cause" in the justification of search warrants. So I have been knee deep in probable cause, search and seizure, and the fourth amendment alllllll day. So here is what I've found.
http://www.probablecause.org/whatisprobablecause.html
"Probable cause must be based on factual evidence and not just on suspicion."
and
"While there are some sources of probable cause that need to be supplemented by other sources, some sources are sufficient enough to stand on their own."
http://www.publications.ojd.state.or.us/A135857.htm
State of Oregon Court of Appeals says "Probable cause exists if facts are shown that would "permit a neutral and detached magistrate to determine that seizable evidence probably would be found at the place to be searched[.]" State v. Castilleja, 345 Or 255, 269, 192 P3d 1283, adh'd to on recons, 345 Or 471, 198 P3d 937 (2008). "Probably" means "more likely than not." State v. Chambless, 111 Or App 76, 80, 824 P2d 1183, rev den, 313 Or 210 (1992)."
I had assumed that in order to search the property of a third party in a criminal investigation, the threshold of "probable cause" to issue a search warrant would be higher than it would to search the property of a "suspect." My assumption was not correct.
Zurcher vs Stanford Daily United States Supreme Court opinion:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0436_0547_ZO.html
"The issue here is how the Fourth Amendment is to be construed and applied to the 'third party' search, the recurring situation where state authorities have probable cause to believe that fruits, instrumentalities, or other evidence of crime is located on identified property, but do not then have probable cause to believe that the owner or possessor of the property is himself implicated in the crime that has occurred or is occurring."
The Supreme Court states "in criminal investigations, a warrant to search for recoverable items is reasonable "only when there is probable cause' to believe that they will be uncovered in a particular dwelling." Search warrants are not directed at persons; they authorize the search of "place
" and the seizure of "things," and, as a constitutional matter, they need not even name the person from whom the things will be seized. United States v. Kahn, 415 U.S. 143, 155 n. 15 (1974)."
The conclusion is this: Any property that is searched, whether it belongs to a "suspect" or someone unknown to a suspect, each search warrant is based on the probable cause that there are specific items of evidence at the property.
http://www.law.cornell.edu/anncon/html/amdt4frag2_user.html
"Particularity.The requirement that warrants shall particularily describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.111 This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to[p.1221]looking in places where the described object could be expected to be found.112 "
Also http://articles.directorym.com/Searches_and_Seizures_FAQ_Oregon-r935227-Oregon.html says:
"A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. "
and:
"But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past."
http://74.6.239.67/search/cache?ei=...M&icp=1&.intl=us&sig=wyxytXR2F7Y3ZZZt.fE2qA--
http://74.6.239.67/search/cache?ei=UTF-8&p=Oregon+"probable+cause+continuum"&fr=yfp-t-701-s&u=www.law.uoregon.edu/org/street/docs/StreetLaw.ppt&w=oregon+"probable+cause+continuum"&d=I29mKLZfVGxp&icp=1&.intl=us&sig=uJ.sfY_mDSGwCgOqZj87kw-
Probable Cause Continuum as related to Search Warrants:
No information
Hunch= Unable to point to specific facts, the officer has a "gut feeling," similar to intuition.
Suspicion= Officer knows a minor fact that suggests evidence may be found, or officer knows a larger fact originating from an unknown or unreliable source that evidence may be found somewhere.
Reasonable Grounds/Belief/Suspicion= Officer knows several minor facts or a larger fact, or officer knows large fact from source of unknown reliability pointing to a particular person.
Probable Cause= Officer has enough evidence to lead a "reasonable" person to assume evidence will be found at a particular place, and the evidence will be connected to criminal activity. This basis is the minimum required to obtain search warrants.
Preponderance of Evidence= "More likely than not." This is the amount of evidence needed to win a civil case.
Beyond Reasonable Doubt= Highest amount of proof. This is required for a person to be convicted.
Noteworthy: The Reasonable grounds/suspicion/belief is the threshold to search the person/workplace/residence/vehicle of those under probation or parole supervision in the expectation that any violation would be found. http://www.co.clackamas.or.us/corrections/info.htm This is difference than search and seizure laws pertaining to private citizens.
http://caselaw.lp.findlaw.com/data/constitution/amendment04/02.html
A search warrant cannot be used to find evidence that would be used to justify the search warrant itself. You cannot put the cart before the horse, so to speak. This is why each search warrant has to specify the items to be seized in particular, and where to search for the particular items. And this is signed by a neutral magistrate or judicial official who has taken into consideration the sworn affidavit or affirmation who also concludes it is reasonable to believe there is "probable cause." This is sort of a two pronged test within itself in issuing search warrants.
I'm very sorry for the wall of China post, my whole point is that in order to execute search warrants on any property, there has to be more than a hunch. Property where Terri Horman lives can't be searched simply because they have "probable cause" to believe she is guilty. There has to be "probable cause" to believe that certain items of evidence specified in the search warrant will be found at the particular location. The probable cause to believe Terri Horman is guilty does not translate into searches of her friend's properties, either.... And it certainly doesn't translate into searches of properties of her friend's relatives.
But if Dede's relatives gave consent, then it can be searched without a warrant.
The article, http://www.kgw.com/news/Reward-missing-Portland--Kyron-Horman-up-to-50000-99349594.html , says "investigators have conducted several searches related to Speicher, including property belonging to relatives of her." Now I know many of us have had problems with these local news articles and their wording. But the way that sounds to me, is that they are quite concerned about any information she may have.... concerned enough to want to search properties she has access to.
But consent to a search can be withdrawn at any time, and anytime a search is conducted under one of the exceptions to the fourth amendment, legal problems can arise if the exception is later contested. Its always best to obtain a search warrant. And in my opinion, its more than a rule of thumb in high profile cases.
http://www.policemag.com/Channel/Pa...ll-When-You-Need-a-Search-Warrant/Page/2.aspx
"For any search, whether of a house, a car, or a container, if you have probable cause and time to get a warrant, it's a good idea to seek one. Even though one of the exceptions might apply, you will generally reduce the risks of both suppression of evidence and civil liability if your entry and search are judicially authorized. And if there is no identifiable exception, there is no lawful way to conduct a search except with a warrantwhich brings us back to the rule-of-thumb: try to get a warrant whenever possible."
