Warrant

While most people associate the term warrant with a legal document that allows police to search a specified place, the term actually has a more general meaning. A warrant is a written authorization, issued by a judge or magistrate, that permits a specified act that would otherwise be illegal, as it would otherwise violate a citizen’s rights. The warrant, sometimes referred to as a “writ,” protects the individual executing the warrant from civil liability for carrying out the instructions in the writ. To explore this concept, consider the following warrant definition.

Definition of Warrant

Noun

1. An authorization, justification, or sanction
2. A written document, issued by a court, authorizing law enforcement officers to make an arrest, seize certain property, or conduct a search.

What is a Warrant

A warrant is a writ issued by a court, giving law enforcement the authority to perform acts that may be outside of their normal scope. Warrants that are issued by U.S. courts include search warrants, arrest warrants, and execution warrants. In addition to courts, government entities, such as state and federal legislatures, may issue warrants, as they have the authority to require attendance of their members. This is referred to as a “call of the house.”

Search Warrants and the Fourth Amendment

The Fourth Amendment of the United States Constitution protects citizens from unreasonable search and seizure. This means that law enforcement officials do not have the authority to search people, or their property, without a just cause. While there are some circumstances that create a reasonable belief that an individual is breaking the law, giving law enforcement officers the right to perform an immediate search, in most cases, the officers must present their belief and evidence to the court to obtain a search warrant.

This procedure provides citizens with an extra layer of protection of their rights, requiring that a judge consider whether the officers have a valid reason to search an individual or his property before issuing a warrant.

Law enforcement officials do not need a search warrant in certain circumstances, such as:

• A limited search of an individual’s outer clothing for weapons – a police must have a reasonable suspicion to “stop and frisk” the individual.
• Border search of people’s clothing, baggage, vehicles, and cargo, made by customs officers
• A search of an area in which contraband, or other illegal object, is in plaint view of law enforcement officers, and that the item is illegal
• Search of an item or property when consent has been given by the individual in control of the item or property
• Search before a warrant could be property obtained, when there is a risk of imminent destruction of the evidence
• Search of an individual when he is placed under arrest – this has the goal of protecting officers from potential harm
• Emergency search – when officers have a reasonable belief that someone is in danger, such as if someone is heard screaming from inside a home, or from the trunk of a car

The Fourth Amendment’s protect does not apply if the person or property being searched does not have a legitimate expectation of privacy.

For example:

If an individual leaves criminal evidence on the front lawn of his home, he has no expectation of privacy, as anyone passing by on a public street or sidewalk can view it. Law enforcement officials can seize such evidence without a warrant.

Similarly, a warrant must be obtained to search through, and listen to, messages on a suspect’s phone. However, if the suspect has left voicemail messages, or text messages, on another person’s phone, he has no expectation of privacy, as he voluntarily left that message for others to read or listen to. If the other person provides these messages to law enforcement or prosecutors, they can be used against the suspect, and no warrant is required.

Difference Between Arrest and Search Warrants

Warrants allow law enforcement officials to perform acts typically considered illegal. There is a difference between arrest and search warrants however, as each one provides officers with certain specific powers. Both types of warrant require law enforcement officials to present convincing probable cause to the court before they will be issued. Both arrest and search warrants must be executed in accordance with the law, as well as the instructions in the warrant, as a violation of a warrant has serious consequences.

Arrest Warrant

An arrest warrant allows police to identify, locate, and arrest an individual charged with a crime. An arrest warrant is typically issued after charges have been filed against a suspect, and remains valid for as long as it takes to apprehend the suspect. A bench warrant is a type of arrest warrant that is issued by a judge when a suspect, who was previously arrested and released on bail, fails to make a scheduled court appearance.

Search Warrant

A search warrant gives law enforcement officials authority to enter a car, a home, land, or other structure, to search for evidence connected with a crime. The property that can be searched must be specified in the warrant. Sometimes, a search warrant specifies the item, or type of evidence, to be searched for, limiting what the police can seize. Unlike arrest warrants, search warrants are commonly issued before criminal charges are filed against a suspect. Search warrants are valid for a very limited period of time.

Other Types of Warrant

There are many types of warrant used by the judicial system in the United States, though some are more common than others. Each type of warrant authorizes a very specific act, and it is important that law enforcement officials execute warrants according to their direction in order to remain within the bounds of the law.

Bench Warrant

A bench warrant is a type of arrest warrant, issued by a judge when an individual fails to appear in court at his scheduled date and time. A bench warrant may also be issued when an individual is held in contempt of court, giving an order to law enforcement to immediately take the individual into custody.

Extradition Warrant

In many cases, suspects are arrested in a state other than where he committed a crime for which an arrest warrant was issued. An extradition warrant gives law enforcement the authority to transfer the suspect to the state where he committed the crime. The suspect stays in police custody until he has been transferred.

Dispossessory Warrant

A dispossessory warrant, also known as an “eviction warrant,” is a civil warrant that gives a landlord permission to enter the property, after a tenant has been evicted, or otherwise vacated the residence, to remove his personal property.

Capais Warrant

There are two types of capais warrant. A criminal capais warrant is an arrest warrant issued when an individual who has a guilty judgment, whether through a guilty plea, or court process, fails to pay a fine, or to complete some other condition ordered by the court. Once an individual has been arrested subject to a criminal capais warrant, he must either complete the jail sentence, or pay the fine in full to get out early.

A civil capais warrant is an order to apprehend an individual, though rather than taking him to jail, law enforcement is directed to deliver him to the court. Civil capais warrants are sometimes issued when individuals repeatedly refuse to comply with the court’s orders in a civil matter.

How to Check if You Have a Warrant

A person does not have to be a member of law enforcement or a government entity to check for warrants. Individuals can do a warrant search to find out if the police have a warrant to arrest them, or to discover what shows up on their criminal history during a background check, by running a public records search on themselves. There are a number of online resources for background checks and warrant searches, which are commonly checked during pre-employment screenings, and renter screenings.

When using an online resource to do a warrant search, it is necessary to enter some basic identifying information, including the individual’s full name, and the city and state where he resides. While there are many privately operated background check websites, they charge for reports, and they do not guarantee that their reports are accurate and up to date.

It is possible to check for warrants by contacting the county courthouse or law enforcement agency where the individual lives. Many agencies require that the individual appear in person to obtain a detailed warrant check, but some will give limited information over the phone. An individual who does have a warrant risks being arrested if he appears at a law enforcement building or courthouse.

Supreme Court Rules on Warrantless Searches

In 2009, police arrested Walter Fernandez after learning he was connected to a robbery they were investigating. At the time of his arrest, Fernandez refused to let police enter the apartment without a warrant. The police arrested him and returned to his apartment an hour later. Fernandez’s girlfriend was at the residence when police arrived, and she allowed them access to the apartment, even though they did not have a search warrant, giving them both verbal and written consent to search.

Once they entered the apartment, police found a knife, a shotgun, and other gang-related materials that led to additional charges. During Fernandez’s trial, his defense team moved to have the evidence suppressed, claiming it was seized in a warrantless search. The court denied to motion to suppress the evidence, and Fernandez was found guilty, and sentenced to 14 years in prison. He appealed on the basis that the court denied his request to suppress evidence that was obtained illegally. The California Court of Appeals for the Second District affirmed the conviction, stating that, since the co-tenant consented to a warrantless search, the evidence need not be suppressed.

The case went to the U.S. Supreme Court, which ruled that if the occupants of a dwelling do not agree on whether to admit police without a warrant, the occupant refusing must be physically present. This means that Fernandez did not have the right to keep police out, once he was removed from the premises. This holds true, even if the police remove the occupant who is refusing the search, as long as the individual was detained or arrested lawfully.

Supreme Court Justice Samuel A. Alito Jr. also stated that the police had no need to obtain a warrant, as when they arrived at the residence the first time, having followed Fernandez from the scene of a robbery, his girlfriend came to the door crying, with injuries, and blood on her clothes. This put the situation into the category of an emergency search, as allowing Fernandez to deny entrance to the police to help this domestic violence victim,

Related Legal Terms and Issues

• Authority – The right or power to make decisions, to give orders, or to control something or someone.
• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Contempt of Court – A willful act of disobedience to an order of the court; deliberately being rude or disrespectful to the judge or the court.
• Felony – A criminal offense punishable by a year or more in jail.
• Perpetrator – A person who commits an illegal or criminal act.
• Scope – Relevant range of authority or practice, or range of control through a contract.
• 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.