Search warrant

The Fourth Amendment of the United States Constitution restricts the unlawful searches and seizures of a person and their property. Specifically, it “secures 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 order to complete a lawful search and seizure of property of a United States citizen the police are generally required to obtain a search warrant, which is a legal order signed by a judge authorizing the search of a specific location, at a specific time, for specific materials.

Legal requirements to obtain a search warrant

Search warrants can only be issued by a magistrate or a judge and only after a law enforcement officer provides evidence to the court that they have probable cause to justify the search.

Probable cause, which is a standard of proof, can be supported with sworn statements by police officers and very specific information about the items the officers want to seize as well as the location which they believe needs to be searched. The police officer does not have to provide evidence that there has been a crime committed by the parties to be searched.

Prior to issuing the search warrant, however, the judge will consider all of the evidence which might justify the search. In some cases, the judge may outline restrictions for the search limiting what can legally be searched or seized.

Do the police always need a search warrant to conduct a legal search and seizure?

Many Americans do not understand their rights as outlined in the Fourth Amendment of the U.S. Constitution. They either do not understand when they do not have to consent to a search or they fail to understand that the police do not always need a warrant to conduct a legal search.

So when can a police officer conduct a legal search without a warrant. Let’s discuss the most common examples below:

• If you consent to the search. Individuals have the legal right to voluntarily and freely agree to a police search of their property, even if the police officer does not have a search warrant. Police may also choose not to recite to you your Fourth Amendments rights to refuse a search. For this reason, it’s important to understand your right to refuse a search.
• The Plain View Doctrine. If a police officer sees something they believe is illegal and this evidence is in plain sight, they have the right to conduct a search. For example, if a police officer sees a bag of cocaine sitting in the passenger seat of your car, they have the legal right to search the car.
• You have been arrested for a crime. If you have been arrested for a crime the police may be allowed to conduct a search of your person and home, especially if they are protecting themselves, they believe evidence may be destroyed, or there may be accomplices to the crime in the location to be searched.
• Exigent Circumstances. Police officers may conduct a search if they believe it is necessary to protect the potential destruction of evidence or getting a warrant could endanger the public’s safety.

If you believe your person or property has been illegally searched and you have been charged with a crime, you need to contact a criminal defense lawyer immediately.