Search Warrant

Search Warrants: an Overview

Contents 

Introduction 

A search warrant is a warrant issued by the competent authority authorizing a police officer to search a specified place for evidence even without the occupant’s consent.  A search warrant is generally required to validate a Fourth Amendment search, subject to a few exceptions.   

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Sources of Law

The Fourth Amendment of the United States Constitution restricts government searches and seizures.  The 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.”

 

In addition to restrictions imposed by the Fourth Amendment, several states’ constitutions regulate searches and seizures, as do many state and federal statutes. For example, federal laws on searches and seizures appear in Title 18, Part II, Chapter 205 – Searches and Seizures.  18 U.S.C. § 3101-18.  Federal warrants are further governed by Rule 41 of the Federal Rules of Criminal Procedure.

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Obtaining a Search Warrant

Only judges and magistrates may issue search warrants.  To obtain a warrant, law enforcement officers must show that there is probable cause to believe a search is justified.  Officers must support this showing with sworn statements (affidavits), and must describe in particularity the place they will search and the items they will seize.  Judges must consider the totality of the circumstances when deciding whether or not to issue the warrant.  When issuing a search warrant, the judge may restrict how and when the police conduct the search.

Under the Fourth Amendment, officers seeking a warrant do not need to show that the people being searched (or those whose property is being searched) committed any crime.  Rather, officers merely need to show probable cause that the sought-after evidence is there.  For example, in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Supreme Court allowed the police to search a student newspaper, where the newspaper was not implicated in any criminal activity but police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers. However, some jurisdictions responded by passing laws restricting or forbidding these kinds of searches.  See, e.g., CA Penal Code § 1524.

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Reasonableness Requirement

Courts use a reasonableness test when considering whether a search violates the federal Constitution.  This reasonableness test preempts other state and federal laws.  Thus, for example, if a “no-knock” entry is unreasonable at the time police execute a search warrant, they must knock and announce their presence, even if they have a no-knock warrant.  Similarly, when determining whether to apply the exclusionary rule in light of police deviations from warrant restrictions, courts consider whether the search, as actually executed, was unreasonable.

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Knock-and-Announce Rule

Normally, law enforcement officers executing a search warrant may not immediately force their way into a residence. Instead, they must first knock and announce their identity and intent.  Then, they must wait a reasonable amount of time to allow an occupant to open the door.  Only after waiting may the police force entry.  This “knock-and-announce rule,” however, is not an inflexible constitutional mandate.  Instead, it is one of the many factors judges consider when determining whether a search was reasonable.  See Wilson v. Arkansas, 514 U.S. 927 (1995).

Police may break the knock-and-announce rule when it is reasonable to do so.  These exceptions must be determined on a case-by-case basis.  For example, in Richards v. Wisconsin, 520 U.S. 358 (1997), the Supreme Court ruled that states may not allow a blanket exception to the knock-and-announce rule for all searches in felony drug cases.

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No-Knock Warrants

Generally speaking, police officers do not need a special “no-knock” warrant before making a no-knock search. Instead, the search is proper so long as the no-knock entry was not unreasonable.  However, police officers may seek a no-knock warrant by showing a judge that the circumstances justify a no-knock entry.  Courts reserve these warrants for situations in which a building's owner or occupier could destroy the sought-after evidence by the time law enforcement waits for the owner or occupier to open the door.

In practice, over the past decade, no-knock warrants have seen increasingly frequent use, particularly in drug cases, and especially in major cities.  There has been a corresponding increase in the number of innocent people accidentally injured or killed by police executing no-knock warrants.

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Anticipatory Warrants

An anticipatory warrant grants police officers a warrant that becomes valid after some future triggering condition occurs.  Courts reserve these types of warrants for situations in which police have probable cause that at some future time evidence in a particular location will become available.  Although United States v. Grubbs presented a challenge to the constitutionality of this type of warrant, the U.S. Supreme Court found that anticipatory warrants do not violate the Fourth Amendment's Warrant Clause. 

Other Warrants

Police officers may obtain warrants to seize and search electronic storage media or electronically stored information. Since December 1, 2009, Rule 41 of the Federal Rules of Criminal Procedure governs these searches. The rules allow officers to copy seized material for later review.  The new version of Rule 41 governing these searches also allows police officers to plant tracking devices on persons or property.

Timing of Searches

Generally, only under special circumstances may police officers execute search warrants at night.  See Gooding v. United States, 416 U.S. 430 (1974).  Different jurisdictions use different definitions of “nighttime.”  For example, federal law enforcement officers must normally start searches between 6:00 a.m. and 10:00 p.m.  See Rule 41 of the Federal Rules of Criminal Procedure.  In practice, the special circumstances exception applies most frequently in drug cases.  top

Extent of Searches

When conducting a search, police may only search the places and people listed on the search warrant, and may only search for the sought-after evidence.  Accordingly, officers may only search places where they might reasonably find the evidence.  For example, officers searching for a rifle may not look in a small jewelry box.

Search warrants may authorize police to search specific, named people found at the targeted location.  However, officers executing a search warrant may detain anyone present during the search.  Furthermore, if officers find sufficient evidence to arrest someone present, they may arrest and search that person, even if the person was not listed on the warrant.

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Post-Search Procedural Safeguards

Most jurisdictions impose additional post-search procedural safeguards.  For example, many jurisdictions require officers to return a copy of the search warrant to the judge after executing it.  This return copy must include information about the search, including a list of what was seized.  Similarly, most jurisdictions require officers to give a receipt for seized property.  See, e.g., Rule 41(f)(1) of the Federal Rules of Criminal Procedure.  top

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