Search Warrants: an Overview
A search warrant is a type of warrant that authorizes law enforcement officers to search a specified place for evidence. Without a search warrant, police officers may not search a place without its owner’s consent.
Sources of Law
The Fourth Amendment of the United States Constitution restrict 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 in 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.
Obtaining a Search Warrant
Only judges 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 the when and how the police may conduct the search.
The Fourth Amendment does not require officers seeking a warrant to show that the people or places to be searched committed any crime. Rather, they 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 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.
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.
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.
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 innocents accidentally injured or killed by police executing no-knock 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. 547 U.S. 90 (2006).
Police officers may obtain warrants to seize and search electronic storage media or electronically stored information. Rule 41 of the Federal Rules of Criminal Procedure will govern these searches, starting December 1, 2009. The rules allow officers to copy seized material for later review. The new version of Rule 41 governs these seraches. also allows police officers to plant tracking devices on persons or property.
Timing of Searches
Generally, police officers may only execute search warrants at night in special circumstances. 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.
Extent of Searches
When conducting a search, police may only search the places and people listed on their 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 they find sufficient evidence to arrest someone present, they may arrest and search that person, even if the person was not listed on the warrant.
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.