Search Warrant

This wiki article contains information applicable to United States law only.

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 where an officer is in hot pursuit of a person, where an emergency exists, and where 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.


FAQ

Q: Do the police need a search warrant to search a vehicle?

A: Rarely. The law in this area is rather complicated, but generally most automobile searches are upheld without a warrant. If no consent is given to search the vehicle, the police will have to establish at a minimum that they had probable cause to search.

Q: Do the police need a search warrant to search a private residence?

A: Almost always, yes. Fourth Amendment law is very complicated and peppered with exceptions and exceptions to exceptions, but as a general rule the police usually need a warrant to search a private residence unless consent is given. The home is one of the few places which enjoys meaningful protection by the Fourth Amendment.

Q: Can the police order me to empty the contents of my pockets or my handbag if they don’t have a search warrant?

A: Not unless (1) you are actually under arrest or (2) the police have frisked your clothing and found what appears to be a weapon. If you have not been frisked, you may lawfully refuse such a request by the police if you are not already under arrest.

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