search warrants

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search warrants

Search Warrants: What They Are & When They Are Necessary

Learn when police officers must obtain a warrant before they search your home or other property.

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."

Police officers obtain warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Is Probable Cause?

The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."

The information in the affidavit need not be in a form that would make it admissible at trial. However, the circumstances set forth in the affidavit as a whole should demonstrate the reliability of the information. In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
an informant who implicates herself as well as the suspect
an informant whose information appears to be correct after at least partial verification by the police
a victim of a crime related to the search
a witness to the crime related to the search, or
another police officer.
Sometimes the police provide mistaken information in the affidavit and the judge or magistrate issues a warrant under circumstances that, given the true state of affairs, would not justify a search under the Fourth Amendment. The question then arises as to whether the search itself is legal. In most situations the search will be upheld if the police acted in good faith when seeking the warrant (that is, they didn't know about the mistakes in the affidavit). The reasoning here is that:

it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake it should not be grounds to exclude evidence.
What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant, and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

 

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Search Warrants: What They Are & When They Are Necessary

If the warrant specifies a certain person to be searched, the police can search only that person unless they have independent probable cause to search other persons who happen to be present at the scene of a search. However, if an officer has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons.

Technically, a person may require the police to produce a warrant before admitting them into his or her home for a search. However, people sometimes run into trouble when they "stand on their rights" in this way. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises to be searched freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. To constitute a valid consent to search, the consent must be given "freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.Sometimes people who are intimidated by the police misinterpret the "request" to be a command and will allow the search. However, so long as an officer does not engage in threatening behavior -- such as placing their hand on a sidearm -- judges will not set aside otherwise genuine consents.

Many disputes about consent have to do with who has the right to consent. For example, do parents have a right to consent to a search of their children's rooms? As a general rule, an adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area, such as a desk and machinery, but not to clearly private areas such as an employee's clothes locker.

A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.
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