search warrant

Search Warrant

A court order authorizing the examination of a place for the purpose of discovering contraband, stolen property, or evidence of guilt to be used in the prosecution of a criminal action.

A search warrant is a judicial document that authorizes police officers to search a person or place to obtain evidence for presentation in criminal prosecutions. Police officers obtain search warrants by submitting affidavits and other evidence to a judge or magistrate to establish Probable Cause to believe that a search will yield evidence related to a crime. If satisfied that the officers have established probable cause, the judge or magistrate will issue the warrant.

The Fourth Amendment to the U.S. Constitution states that persons have a right to be free from unreasonable searches and seizures and that "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." State constitutions contain similar provisions.

The U.S. Supreme Court has not interpreted the Fourth Amendment to mean that police must always obtain a search warrant before conducting a search. Rather, the Supreme Court holds that a search warrant is required for a search unless it fits into a recognized exception.

The exceptions to the search warrant requirement are numerous. One common exception is the search of a person incident to a lawful arrest. The Supreme Court held in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), that an officer may search the arrestee as well as those areas in the arrestee's immediate physical surroundings that may be deemed to be under the arrestee's control. Other exceptions to the warrant requirement include situations in which an officer is in Hot Pursuit of a person, in which an emergency exists, and in which the item to be searched is mobile, such as an automobile. Similarly, searches at public way checkpoints, airports, and international borders may be conducted without first obtaining a search warrant.

To obtain a search warrant, an officer must personally appear before, or speak directly with, a judge or magistrate. The officer must present information that establishes probable cause to believe that a search would yield evidence related to a crime. Probable cause exists when an officer has either personal knowledge or trustworthy Hearsay from an informant or witness. The officer must fill out an Affidavit stating with particularity the person to be seized and searched, the area to be searched, and the objects sought. The warrant need not specify the manner in which the search will be executed.

The officer must sign the affidavit containing the supporting information establishing the grounds for the warrant. By signing the affidavit, the officer swears that the statements in the affidavit are true to the best of his or her knowledge. A police officer who lies when obtaining a warrant may be held personally liable to the searched person. According to the Supreme Court's ruling in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), however, a police officer is not personally liable for a wrongful search if a reasonable officer could have believed that the warrantless search would be lawful in light of clearly established law and the information the officer possessed at the time.

Following the September 11th Attacks in 2001, the United States government sought to expand the means by which law enforcement personnel could investigate potential terrorist activities. The USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, created and expanded a number of exceptions to the traditional search warrant requirements. Although a person subject to a search warrant is ordinarily entitled to notice that the warrant was issued, the USA PATRIOT Act allows magistrates to issue socalled "sneak and peak" warrants, which do not require police to notify the person subject to the search. Moreover, the act expanded the abilities of officers to install "roving" wiretaps of telephones and other communications devices used by individual suspects without naming the specific telephone carrier in the warrant. The act also expanded police officers' abilities to search stored E-Mail and voicemail messages.

Although the provisions of the USA PATRIOT Act are purportedly designed to enhance the ability of law enforcement agencies to prevent terrorist activities against the United States, many of these provisions can be applied to U.S. citizens who are not engaged in such activities. Several commentators and organizations, such as the American Civil Liberties Union, have criticized the act because of its detrimental impact on civil liberties. Supporters of the act counter that the attacks on September 11, 2001, could have been prevented if law enforcement had available to them some of the tools provided under the new law.

Further readings

Bloom, Robert M. 2003. Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger.

Guidelines for the Issuance of Search Warrants. 1990. Chicago: American Bar Association, Criminal Justice Section.

Pitowsky, Robert A. 2002. "An Overview of the Law of Electronic Surveillance Post September 11, 2001." Law Library Journal (fall).

Rotenberg, Marc. 2002. "Privacy and Secrecy after September 11." Minnesota Law Review (June).

Cross-references

Automobile Searches; Search and Seizure.

search warrant

n. a written order by a judge which permits a law enforcement officer to search a specific place (eg. 112 Magnolia Avenue, Apartment 3, or a 1991 Pontiac, Texas License number 123ABC) and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor). The 4th Amendment to the Constitution specifies: "...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 14th Amendment applies the rule to the states. Evidence unconstitutionally seized cannot be used in court, nor can evidence traced through such illegal evidence. (See: search, search and seizure, probable cause, fruit of the poisonous tree)

search warrant

a written order issued by a judicial authority authorizing a constable or other officer to enter and search premises.

SEARCH WARRANT, crim. law, practice. A warrant (q.v.) requiring the officer to whom it is addressed, to search a house or other place therein specified, for property therein alleged to have been stolen; and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. It should be given under the hand and seal of the justice, and dated.
     2. The constitution of the United States, amendments, art. 4, declares that "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 person or things to be seized."
     3. Lord Hale, 2 P. C. 149, 150, recommends great caution in granting such warrants. 1. That they be, not granted without oath made before a justice of a felony committed, and that the complainant has probable cause to suspect they are in such a house or place, and his reasons for such suspicion. 2. That such warrants express that the search shall be made in day time. 3. That they ought to be directed to a constable or other proper officer, and not to a private person. 4. A search warrant ought to command the officer to bring the stolen goods and the person in whose custody they are, before some justice of the peace. Vide 1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17, n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h.t.; Williams' Just. h.t.