5.3: Obtaining a Search Warrant

Definitive! The Fourth Amendment

The Fourth Amendment states in full:

“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.’

When a crime is committed, the law enforcement agencies will begin the investigation process and seeks to obtain evidence to prove the guilt of a suspect. One of the primary methods to obtain this evidence is through search warrants. Officers must obtain information properly in order for it to be used in a trial. Evidence that is obtained improperly by officers may be excluded from trial due to the exclusionary rule (which will be discussed in detail later in the course). One of the worst things that can happen in policing is when good evidence proving the guilt of an offender is seized improperly and excluded from a trial. This section will provide information on how to properly secure a search warrant so the evidence is obtained legally for use in a trial.

Right to Privacy

To understand how the Constitution of the United States limits criminal law, it is important to consider the right to privacy. Shockingly, the term “privacy” never appears in the Constitution. Yet, over the years, the Supreme Court has said that several of the rights that are explicitly stated in the constitution come together to create a right to privacy. In the world of procedural law, it must be remembered, if the Supreme Court of the United States says it, it is so.

The right to privacy places a limit on many forms of police conduct, from searches to arrest. It is important, however, to understand there is a limit to how far the right goes. It is not absolute. The police are not prohibited from interfering with a citizen’s privacy interest, but it must be reasonable when they do so.

When it comes to the police conducting searches of people, vehicles, homes, offices and anywhere else a person has a right to privacy, the idea of reasonableness comes down to probable cause. Probable cause means that there is sufficient evidence to make a reasonable person would believe that the person is doing something contrary to the law.

An officer desiring to conduct a search needs probable cause for the search to be lawful. Because society expects police officers to find evidence and arrest criminals, they may be overzealous in determining whether they do or do not have probable cause. As a general rule, the evidence establishing probable cause must be submitted to an impartial magistrate, and if the magistrate agrees that probable cause exists, then he or she will issue a search warrant.

Probable Cause

For a warrant to be issued, the magistrate must determine that probable cause exists. This has to be in the form of a sworn statement called an affidavit. When determining probable cause for a search, the reasonableness test used by the courts considers the experience and training of police officers. That is, the test is not merely what a reasonable person would believe, but what a reasonable police officer would believe in light of the evidence as well as the officer’s training and experience. Note that the standard for establishing probable cause is more likely than not. This is a far lesser standard than the proof beyond a reasonable doubt standard required for a conviction in criminal court.

The Particularity Requirement

Another requirement for a search warrant to be valid is that it must particularly describe the person or thing to be seized. There are many supreme court cases that establish what this means in particular circumstances. As a general rule regarding search warrants, it means that the place to be searched is sufficiently described that it cannot be confused with some other place.

Obtaining and Executing a Search Warrant

The warrant application process varies in exact detail from jurisdiction to jurisdiction. Often, the Supreme Court of the state in which the warrant is sought provides the details in a legal document known as the Rules of Criminal Procedure. The basic rules, however, are dictated by the Supreme Court as interpretations of the Fourth Amendment. All of the officer’s evidence must be contained in an affidavit. The rules also dictated how a warrant must be executed. As a general rule, the warrant must be served during daylight hours, and officers must identify themselves as officers and request entry into the place to be searched. This identification requirement is known as knock and announce.