Search Warrants: What They Are and When They're Necessary
Learn when police officers must obtain a warrant before they search your home or other property.
A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 a.m. to 6 p.m." and direct the police to search for and seize "cash, betting slips, record books, and every other means used in connection with placing bets on horses."
How Police Obtain Search Warrants
Police officers obtain search warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations, or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.
The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.
What Police Can Search for and Seize Under a Warrant
The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.
If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons (but not do a full search).
When Search Warrants Aren't Required
Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.
Consent Searches
If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.
Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators.
On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area but not to clearly private areas such as an employee's clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.
The Plain View Doctrine
Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.
Search Made in Connection With an Arrest
Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.
Police may sometimes also make what's known as a "protective sweep" following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.
The Emergency Exception
As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:
- An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
- Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush it!" The officer arrests Eddie and seizes the stash.
- A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.
- A police officer "in hot pursuit" of a fleeing suspect continues the chase into the suspect's dwelling in order to make the arrest.
In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.
Allowing Police to Make a Warrantless Search
A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.
Searches of Cars and Their Occupants
Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.
While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons if the officers have a "reasonable suspicion" that the occupants are involved in criminal activity and are reasonably concerned for their safety.
For More Information
To answer all your questions about the legality of various police searches and seizures, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman (Nolo). If you need a criminal defense lawyer, you can turn to Nolo's trusted Lawyer Directory to find an attorney near you.