What is a Search Warrant?

December 18, 2013 in Freedom of Information WHAT IS A SEARCH WARRANT?

This post will discuss what a search warrant is and the steps law enforcement officers must take to get one. If police have served you with a search warrant, contact an experienced criminal defense attorney right away.

A search warrant is a legal document that authorizes law enforcement officers to search a specified place for evidence of a crime.

It is important to understand that law enforcement officers are not always required to have a search warrant to conduct a search. But generally, law enforcement officers are not allowed to search a place without a warrant absent the owner’s consent.

The basis of the search warrant requirement is the Fourth Amendment of the United States Constitution. The Fourth 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.”

Several states’ constitutions also regulate searches and seizures. There are also state and federal statutes that govern searches and seizures, such as the Wiretap Act and certain provisions of the New York Penal Code.

In order to obtain a search warrant, law enforcement officers must go to a court. Only judges are allowed to issue search warrants. The law enforcement officers seeking a search warrant must demonstrate that there is probable cause to believe that a search is justified.

Typically, courts find probable cause (for purposes of a search warrant) when there is a reasonable basis for believing that evidence of the crime is present in the place to be searched.

Law enforcement officers seeking a search warrant submit sworn statements (affidavits) to the court to show that that probable cause exists. They must also describe in particularity the place they will search and what items they will seize.

Judges are supposed to consider the totality of the circumstances in deciding whether or not to issue the warrant to the requesting law enforcement officers. The judge may decide to restrict when and how the police conduct the search.

It is important to understand that the Fourth Amendment does not require law enforcement officers seeking a warrant to show that anyone committed a crime. Instead, they merely need to show probable cause that the sought-after evidence is in the place they wish to search.

If a court grants a search warrant to law enforcement officers, there are rules governing how it can be executed. Typically, law enforcement officers executing a search warrant at a home or residence are required to first knock and announce their identity and intent. They must wait a reasonable amount of time to allow an occupant to open the door. Only after waiting can the police force entry into the home or residence. There are exceptions to this rule, but they are evaluated on a case-by-case basis.

When executing a warrant, law enforcement officers are bound to other requirements. They must conduct the search in a reasonable fashion. For example, law enforcement officers with a warrant to search for a rifle cannot open a small jewelry box in executing the warrant.

When the police do not have a warrant, they must obtain consent from the owner of the premises (or the renter) to conduct a search.  Without the consent, the police are not allowed to proceed.  So, someone is asked by the police to consent to a search, they should refuse if they do not want the police to do so.  The police will make threats and try to intimidate the owner (or renter) controlling the premises but without the consent, and absent special exceptions such as an emergency, threat to public safety, concern about the destruction of evidence, the police cannot conduct the search.

If you have been presented with a search warrant and police officers have executed a search of your property, an experienced criminal defense attorney can help you understand your rights.