You’ve probably seen the familiar scene on any number of legal courtroom
drama television shows. The cops know that if they just search the suspect’s
home or car, the evidence is sure to turn up, securing a long prison sentence
and legal justice for the victims. Often, though, they will run into the
issue of a search warrant. The judge won’t give them one for a variety
of reasons. So what exactly does a search warrant cover and do not cover?
How does law enforcement obtain one? When are times that they don’t
need a search warrant? And how does it affect you? Read on to find out more.
What Is A Search Warrant?
A search warrant is a legal order that is signed by a judge. It “orders”
(allows) police officers to search a place for only certain items or materials
at a predetermined time. As you can see, a search warrant is supposed
be very specific, which protects the rights of the suspect. For example,
a search warrant would state that police are allowed to search 123 Central
Ave between the hours of 8 a.m. and 5 p.m. Police will be allowed to search
for a seize illegal controlled substances, drug paraphernalia, and preemptive
chemicals used to manufacture drugs.
How Do Police Officers Obtain A Search Warrant?
Police officers will need to go to a judge and convince them that there
is enough probable cause to search a certain location for either criminal
activity or evidence of criminal activity. Police officers go about this
by giving the judge written statements called “affidavits”
which can report their own observations they’ve made or observations
made by citizens of the community or even undercover cops. These affidavits
are submitted under oath. If the judge reads the affidavit and and thinks
there is enough probable cause to search the premises then a search warrant
will be issued. Note that the suspect can later challenge the validity
of the issuance of the warrant.
What If Police Find Something That’s Not In The Warrant?
As we mentioned before, search warrants only allow police to search a specific
location at a specific time for specific items. This means they can’t
search the suspect’s storage unit next to the apartment if the search
warrants doesn’t say they can. They can’t seize illegal drugs
if the warrants specified weapons. This is in most cases, though. Sometimes,
police officers CAN still seize other items if they have independent probable
cause, especially if the officer’s safety is at risk. They can also
perform a frisk, which is sort of an informal search that isn’t
quite as invasive but allows them to check a suspect for weapons.
Do Police Need A Search Warrant Every Time?
The short answer is no. Did you know that a lot of searches occur in the
US without any form of search warrants? This is because over recent years,
courts have begun to define certain cases in which a search warrant isn’t
necessary. The two main reasons behind their decisions are: 1.) the search
is reasonable in that circumstance or 2.) there was no expectation of
privacy in that circumstance. Some examples of times when police officers
don’t need a search warrant are the following:
- Someone freely and voluntarily submits to being searched. This is often
referred to as a consent search. If someone gives their consent to be
searched or have their property searched, then the search is valid in
the eyes of the law. Police don’t have to warn people that they
can say no to a search and refuse, however. If the police use coercion
to perform a search, then the search can be deemed invalid and the found
evidence inadmissible. Consent searches can also be tricky in cases of
multiple tenants in one residence. If one tenant consents, that does not
mean the police can search the residence. Similarly, a hotel manager cannot
consent to the search of an occupied room. On the other hand, employers
can consent to all public work areas to be searched, just not private
employee lockers or property. As you can see, consent can be confusing
and hard to understand.
- If the evidence is in plain view, police officers are allowed to legally
search and seize it. This does not mean that if a police officer is in
a place where they are not authorized to be (like a private warehouse)
and spot the evidence. The officer must have the right to be there. Some
examples: if a police officer is in your home and sees marijuana on a
coffee table, or if a police officer sees an illegal weapon in the backseat
of your car.
- Legally, a police officer doesn’t need a search warrant if the person
has just been arrested. THis is called a search “in incident to
an arrest”. This is because, following an arrest, police officers
have the right to search you or your property in order to protect themselves
from weapons (called a protective sweep) and protect the case by searching
for evidence that the suspect might try to destroy.
- In cases of an emergency, like if public safety is at risk or important
evidence could be lost, police don’t need a search warrant. For
example, if a police officer is helping a person in a car wreck and finds
drugs inside the vehicle, or if an officer is chasing a suspect on foot
and follows them into their home, the officer is legally allowed to do
so and doesn’t need a search warrant.
What If A Police Officer Wants To Make A Warrantless Search Of My Property?
In some cases, police officers are allowed to make warrantless entries
and searches without the knowledge of the suspect. If you think you have
found yourself in that situation, don’t interfere but be vocal about
your refusal of consent. You can be charged with interfering with a police
officer if you attempt to stop them from continuing with their search,
but you can wait and see if the officer’s actions were legal and
proper in court.