Search Warrant
A search warrant is a court order authorizing law enforcement officials to search an individual’s private residence or other premises for evidence of a crime. The search warrant also allows law enforcement officials to confiscate any evidence they find that is related to the crime. Search warrants are made necessary by the Fourth Amendment to the U.S. Constitution, which protects people’s right to be free from unreasonable search and seizure. To explore this concept, consider the following search warrant definition.
Definition of Search Warrant
Noun
- A court order authorizing the search of a private premises, or other location, by law enforcement officials.
Origin
1730-1740
Obtaining a Search Warrant
A search warrant is an order, issued and signed by a judge, which gives police officers the authority to search a specified place, for the purpose of searching for specified items, or types of materials. According to the 4th Amendment to the U.S. Constitution, police are required to prove to the court that probable cause exists, based on direct information, such as the officer’s personal observations, or hearsay information, before a search warrant can be issued.
4th Amendment Rights
The 4th Amendment to the U.S. Constitution, addressing the issue of unreasonable searches and seizures, was adopted on March 1, 1792. While the amendment prohibits unreasonable searches and seizures, it sets up a method for obtaining permission to conduct reasonable and necessary searches and seizures. This process requires a warrant be issued by a judge after probable cause has been shown.
Under the 4th Amendment, a search warrant must specify what location is to be search, and what things or people are to be seized, or taken into custody. The text of the 4th Amendment 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.”
Search and Seizure
In the United States, the police are required to follow certain rules in conducting searches and seizures. Evidence obtained in an illegal search cannot be used to prosecute the suspect, which motivates the investigators to follow the rules. Specific standards for search and seizure vary by state, and come largely from judicial interpretation. These rules are designed to protect people’s privacy, and to limit the ability of the police to invade areas that a person expects to be private.
What is Considered to be a Search
There are two main questions that the court considers in determining whether a police investigation is considered to be a search.
- Did the individual expect some degree of privacy at the location
- Is the individual’s expectation of privacy reasonable
If the answer to both of these questions is “yes,” it is a search. If the answer to either or both of these questions is “no,” it is not a search for legal purposes.
For example:
David is arrested on suspicion of embezzlement from his company, and police have so far been denied a warrant to search his home and car for evidence, as they cannot provide reasonable suspicion that David is the one who took the money.
During their investigation, police pick up two bags of trash before the garbage truck picked them up from the curb in front of David’s home. In one bag, police find a wadded up piece of paper containing some financial scribblings, as well as two off-shore bank account numbers.
There is no expectation of privacy in regard to the things people throw into the trash, even if the trash is at their home or other private place. Once the trash goes out to a place where the public has access, there is no privacy. Because of this, the seizure and subsequent search of David’s trash is not considered to be a search, and no warrant was needed.
What Powers Does a Search Warrant Give Police
A search warrant gives police authority to enter a specified premises without permission of the owner or suspect. If the warrant specifies an area inside the premises to be searched, police must limit their search to that area. In most cases, the warrant also specifies the evidence sought, which also limits the search parameters.
For example, if a search warrant specifies that police may search a suspect’s house, they must limit their search to the actual residence, even if they become suspicious that there may be evidence in a shed at the back of the property. If the police wish to search the shed, or any other buildings, they must obtain a separate search warrant.
There are exceptions to this rule however, as police do have the power to search beyond the scope of a warrant to ensure their own safety, or the safety of other people. Other exceptions include:
- Searching additional rooms to stop a person from destroying evidence
- Searching for additional evidence beyond what the warrant specifies based on items found
- Searching for additional evidence based on evidence in plain sight during the search
Example of Search Warrant Seizure
Police have a search warrant to search Brad’s kitchen. As they enter the house, police must walk through the living room to reach the kitchen. While walking through the living room, the officers see several baggies of cocaine and a scale sitting on the coffee table. In this example of search warrant deviation, although the living room and drugs were not included in the warrant, the police can legally seize the evidence.
Warrantless Search
There are many circumstances when a warrantless search falls within the bounds of the law. In such cases, the police have the authority to search a person, or his property, without first obtaining a search warrant. Some of these instances for warrantless search include:
Consent Searches
If a person voluntarily agrees to let police officers conduct the search, no warrant is needed. On the other hand, a person can refuse to give consent to the search and can also revoke consent at any point while the search is taking place. Consent is not valid if the individual was coerced by police.
Searches in Connection with an Arrest
When an individual is arrested, police have the authority to search person, as well as the areas immediately surrounding him, without a search warrant. In some jurisdictions, the area immediately surrounding a suspect is limited to his arm span.
Car Searches
Police can search an individual’s car if there is probable cause to believe it contains evidence of a crime. Illegal items in plain view inside the vehicle gives police such probable cause. In addition, police may conduct a search of a suspect’s person and car for their own safety. Such a search is for weapons, but they may also legitimately find contraband during such a search.
Items in Plain View
The basis of the warrantless search is the “plain view doctrine.” This states that police can seize illegal items that are in plain view, with no warrant required, if:
- The officer is present and can plainly see the evidence
- The officer has the legal right to access the object
- It is immediately apparent that the object is evidence of a crime
- In addition, spotting illegal items left in plain view may be probable cause for the officer to obtain a search warrant, or to have the existing warrant expanded.
Example of Search Warrant Case
On May 23, 1957, police were looking for a bombing suspect named Virgil Ogletree, when they arrived at the home of Dollree Mapp, demanding entrance. Police believed, based on a tip, that the man was holding out inside Ms. Mapp’s home. Ms. Mapp, a young black woman, stood up to the white police officers, asking for a search warrant. When they could not produce a warrant, she refused to let them in.
Three hours later, four police cars arrived at Mapp’s house. Afraid, Mapp didn’t answer the door when the police knocked. The police barged in anyway, and Mapp again asked to see a search warrant. When she was shown a piece of paper an officer said was a warrant, Mapp grabbed it and put it inside her blouse. The officer reached inside Mapp’s blouse and snatched the paper back.
The officers handcuffed Ms. Mapp, then proceeded to search her entire house, including her daughter’s room, to discover there was no fugitive there. What officers did find was a gun, a nude sketch, and books that were considered obscene at the time, which Mapp stated belonged to a previous boarder. Police arrested Mapp and charged her with felony possession of obscene materials.
During the trial, officers were unable to produce the search warrant. In fact, it was never to be seen again. The fugitive was later found at a neighbor’s house, and the charges against Mapp were dropped.
When Mapp refused to testify in court against an acquaintance, she was again charged and prosecuted on the obscenity charges. A jury found her guilty in 1958, after which she filed a series of appeals based on the First Amendment right to freedom of expression.
The case found its way to the U.S. Supreme Court, where the justices laughed about the absurdity of the state’s obscenity law before shifting its focus to the manner in which the evidence used against Ms. Mapp was obtained.
Prior to Mapp’s case, many states made a practice of allowing all evidence into trial, even if it was obtained illegally, as it had been ruled that the Fourth Amendment did not bind the states. The five Supreme Court justices shocked the legal world when they overturned Mapp’s conviction, and made it clear that, from that point on, no state could infringe upon a person’s right to be free from illegal searches and seizures, and therefore could not take into consideration illegally obtained evidence.
The toll of that particular legal bell, in the 1961 case of Mapp v. Ohio, still rings throughout the modern judicial system, as search warrants are serious business, and any evidence obtained illegally is likely to be thrown out.
Related Legal Terms and Issues
- Authority – The right or power to make decisions, to give orders, or to control something or someone.
- Coercion – The act of using force or intimidation to ensure compliance.
- Consent – To approve, permit, or agree
- Criminal Charge – A formal accusation by a prosecuting authority that an individual has committed a crime.
- Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
- Probable Cause – Facts and circumstances leading to the belief that an accused person has committed a crime. Probable cause does not arise from a suspicion or a “hunch,” but from observable facts and circumstances.
- Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.
- Warrant – A writ issued by a court or other legal official authorizing law enforcement or other agency to make an arrest, search a premises, or take some other action related to the administration of justice.
