The latest news of the Baby Lisa Case has focused on the affidavit in support of the search warrant. The execution of a search warrant can prove to be one of the most critical steps in a criminal investigation. The evidence seized, the manner in which it was seized and the analysis of that evidence may be the difference between acquittal and conviction.

Our founding fathers understood the intrusiveness of a search and established rules for obtaining a search warrant. The fourth amendment of our Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The affidavit submitted to obtain a search warrant of the Irwin residence highlighted important information. I found the following two facts to be the most compelling:
- A cadaver dog “indicated a positive ‘hit’ for the scent of a deceased human…”
- “…dirt having an appearance of being recently disturbed or overturned.”

These two statements, while not conclusive, lead a reasonable person to believe, when considering all the facts in toto, that there was probable cause to believe a body may be found.

That is sad and difficult to confront. However, we should not be surprised. The police activities have clearly reflected their focus on recovering a body. Though the implications of these statements are obvious, I was a little surprised that these two facts were limited to a few sentences at the end of the affidavit.

The first step any defense attorney takes is to quash the search warrant, thus disallowing any evidence seized during the search to be admitted in to trial. This approach is usually based on showing a defect in the warrant, often citing a lack of probable cause. Accordingly an affidavit must be as specific and compelling as possible to ward off any future attack by a defense attorney.

This search warrant did contain some generalities that I felt could have been presented in more detail and specificity. For example, one paragraph discussed three cell phones that were missing and were not located. The affidavit made no mention of why they suspected the cell phones would be found in the house. There was no mention of any other attempt to locate the phones (e.g. through the cell phone company). The significance of these phones in establishing probable cause could have been explained in more detail.

The police also do not want to be overly specific in the affidavit. That too can lead to challenges that may result in the search warrant being quashed and the evidence not admitted.

The primary goal of the search is to find Baby Lisa, hopefully alive. Yet, the police cannot ignore the importance of the prosecution should this sadly become a homicide. Then, the eyes of the nation will be upon them. As of now, everything the police have done has moved them in the right direction.