Search Warrants and Their Use

The Fourth Amendment of the United State Constitution guarantees the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.  A search can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. A search warrant is an order issued by a neutral and detached Magistrate that gives officers the authority to conduct a search of a person or location for evidence of a crime and to take evidence that is found.

In order for a search warrant to be issued, the officer must provide a sworn affidavit to the Magistrate establishing probable cause. If the Magistrate determines the evidence shows probable cause, the warrant will be issued. In determining probable cause, the judge is considering first-hand knowledge by the officer of the tipster. When information is provided by a tipster, the tipster’s information will be weighed in light of the person’s basis of knowledge, credibility, veracity and the officer’s ability to corroborate the information provided.

There is certain information that the warrant must contain on its face. The warrant must describe with particularity the person and location to be search. There does not have to be strict particularity in regards to things to be seized unless it is stolen property because the officers may not know exactly what is going to be seized. If the warrant does not facially comply with these standards, it will be determined to be invalid. Thus, any evidence obtained will be suppressed unless there is a good faith exception. A warrant will also be found to be invalid if the material to prove probable cause was provided deliberately with knowledge that it was false.

Warrants allow officers to detain persons on the premises while conducting the search. However, only the people named in the warrant may be search.  Some warrants for private places allow the phrase “all persons on the premises” which allows any person who is present to be searched. The phrase is not likely to be used for public places. More so, just because an officer has a warrant does not mean they can just walk right in. The officers must knock and announce their presence. There are some situations when officers will not have to knock and announce (e.g. hot pursuit of a suspect).

Even though warrants are required to prevent unlawful searches, there are some situations which officers do not have to obtain a search warrant first because of exigent circumstances. Some exigent circumstances include: hot pursuit, gravity of the underlying offense, public safety, and prevent destruction of evidence.

Even more, some states may allow anticipatory warrants. Basically, the warrant becomes effective upon some action or event taken place. The affidavit provided to obtain the warrant will contain the triggering condition to go in effect.  For example, the officer received a call from the post office that someone is expecting a shipment containing child pornography. The officer can obtain a warrant that will not go into effect until a delivery is made and accepted by the suspect.

Warrants are useful in preventing the unlawful search and seizure of persons and property. The process is set up to assure that rights are not violated. Also, there are remedies to suppress evidence when the process to obtain the warrant does not meet the standards.

 

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