Search Warrants: Types & Purpose

Instructor: Kenneth Poortvliet

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

Police often need a warrant before searching for evidence. In this lesson, we will explore the various types of search warrants and the purpose of each one.

The Search

The fire department showed Tomi a warrant to search his house for large amounts of improperly stored flammable liquids. The agents saw an industrial sized stove, five-gallon jugs of antifreeze and battery acid, boxes of sudafed and several one-gallon jugs of acetone. The agents took the acetone and left. Tomi thought he'd dodged a bullet, but an hour later he found himself face down in his living room, handcuffed and being read his rights by a police detective. What happened?

The Fourth Amendment protects people from unreasonable searches of their person and places. It also requires that a search be based on probable cause and sets out requirements for getting a search warrant. Not all searches by the government require a warrant, but in the cases that do, the amendment says ''no Warrant shall issue but upon probable cause, supported by Oath or affirmation particularly describing the place to be searched, and the persons or things to be seized.''

The Search Warrant

A search warrant is an order issued by a judge or magistrate to allow officers to enter a protected area and search for evidence of a crime. The officer or agent seeking the warrant must show probable cause in an affidavit swearing an oath that the information is correct. Probable cause means that the officer reasonably believes that the place to be searched contains evidence of a crime. The affidavit must spell out circumstances and facts that show the judge that probable cause exists. The warrant must specify the items sought in the search, and the places and any persons to be searched.

Types Of Warrants

A judicial warrant (often called a criminal warrant) is the most common search warrant and is most likely what the founders had in mind when the Fourth Amendment was written. It is typically sought by a police officer such as a detective or investigator. Because probable cause is required, the officer has to have something to go on besides a hunch or hope, and the circumstances of the probable cause become the bases for the warrant.

The purpose of the judicial warrant is to search for evidence of a crime in a place that otherwise would be off limits due to privacy rights. For example, Detective Danny gets a tip from one of his informants that drugs are being sold from a home. The informant saw a duffle bag of drugs and cash in one of the bedrooms, and several people came by to buy drugs while he was there. Detective Danny fills out a affidavit with this information, and the judge issues a warrant for the home to be searched for drugs and cash.

A DNA warrant is a criminal warrant that specifically allows the agent to get a DNA sample. The usual method is a swab of mucus or saliva in the mouth. A search warrant for the home will typically not allow the officer to swab a person. Remember, the warrant must describe the items seized. Unless the person's saliva from his or her mouth is specified in the warrant, it is off limits.

An administrative warrant is a search warrant issued to an administrative agency to search for violations of civil code. Typically, it is an agency dealing with public safety like the fire or health department. Someone from the agency must make the application, and the purpose must be in line with the purpose of the agency. Though there is still a probable cause requirement, right to privacy is weighed against perceived threat to public safety.

Industry inspections are routine, but if the owner refuses, an administrative warrant allows the inspector in to conduct a search.

The agency in question must show that ''reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.'' The warrant allows a search for that limited purpose; however, evidence of an unrelated crime can be seized under the plain view doctrine (unrelated evidence of a crime found in plain view), which can be used to create probable cause for a criminal warrant.

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