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Search Warrant

From lawbrain.com

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.

Contents

Overview

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.

Obtaining a 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)[1], 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.

Exceptions to Search Warrant Requirement

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)[2], 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.

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 US 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 so called "sneak and peak" warrants, which do not require police to notify the person subject to the search.

Moreover, the US Patriot 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.


Effect of the US PATRIOT Act

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.

References

  1. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=483&invol=635
  2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=395&invol=752

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).

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