Copyright

Search Warrants: Exceptions, Requirements & Procedure

Instructor: Kenneth Poortvliet

Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.

The U.S. Constitution protects people's privacy against government intrusion but also allows for searches under certain circumstances. In this lesson, we will look at the requirements for a warrant and look at some exceptions to those requirements.

The Rescue And Search

Lauren screamed as Humphrey grabbed her. They stopped and then did it again vowing to be ready for the dress rehearsal this Friday. Suddenly, the police rushed in and handcuffed Humphrey whisking Lauren out of the house. After an explanation they let him go, but then arrested them both after seeing drugs on the coffee table.

Does this seem right? Don't they need a warrant to search a home?

The Search Warrant

A search warrant is an order from a judge or magistrate giving officers the right to search places normally off limits due to privacy rights. This is based on the Fourth Amendment which guarantees people to be free from unreasonable searches and seizures and requires that any search warrant issued be based on the oath or affirmation of the officer seeking the warrant. The warrant must describe the person and places to be searched and the items to be seized, and the amendment also requires that a warrant be based on probable cause which means that police must show they have a reasonable belief, based on the circumstances, that the place to be searched will contain evidence of a crime. Those beliefs must be articulated in the warrant application.

Procedure For Obtaining A Warrant

It works like this: Detective Dino wants to get a warrant to search Fred's home. One of her informants told her that he had seen drugs, equipment, and cash while he was in the home buying drugs from him. Dino also observed traffic going in and out of the house that was consistent with selling drugs. She would then need to fill out a sworn statement and an application for a search warrant which would include the reasons why probable cause exists. The judge evaluates the application and decided to issue a warrant, or not.

Some searches by their nature do not require a warrant. This is based on the expectation of privacy, which is how much privacy one reasonably has in their current location. Walking in public would be the least expectation of privacy and the most would be inside the home. However, in any warrantless search, the officer must personally observe the contraband or conduct that amounts to probable cause. For example, if Officer Serpico pulls over a car and then spots a baggie that looks like drugs on the floor along with some scales and some empty baggies, that would be enough for probable cause to search.

Exceptions

For those searches that do require a warrant, there are exceptions. Some of them are:

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