How Do Search Warrants Work, How Are They Issued and How do They Impact Your Rights?

Under the fourth amendment, it is required that when a warrant is issued to conduct a search of a property or person, it must be lawful unless there are extenuating criteria. In most cases, an arrest is considered valid when a person is taken into custody by law enforcement regardless of whether a warrant was issued for the persons arrest or not.

The fourth amendment states that warrants must be issued on the premise of probable cause. Probable cause is important because it is distinct in stating that it must be based upon what are called known facts. These known facts could lead a reasonably prudent person to draw conclusions about the known facts which tend to trigger official civil action.

To clarify, a search warrant is a written order signed and issues by a judge or magistrate that provides the authorities with the power to conduct a search of specific premises for specified items. This can include the authority to seize property, people or said items and require them to appear in court as named in the official warrant.

What constitutes a search?

A search occurs when the expectation of privacy is removed due to reasonable consent by society, this is where laws come into place along with the fourth amendment. A search cannot legally occur without the authority of a judge or magistrate and the issuing of a warrant stating that a search may take place.

Property can be seized when there is reasonable cause to believe that the individuals' ownership can be inferred in the act of criminal actions or behavior. An example of this would be a drug dealer who purchased a car with monies used from illegal activities. There have been multiple cases in which drug dealers have had their homes, cars and all assets seized by the authorities for the implication that they may have been purchased with illegal funds.

First, the law enforcement officers must prepare an affidavit. The affidavit is a written statement which is made or taken under oath normally before an officer of the court or sometimes a notary public. The affidavit must be convincing and contain only facts, and no speculation or opinion. The facts of the case must be concise and provide information which support probable cause.

Next the judge or magistrate reviews the affidavit for legal proficiency. The only way that a search warrant can be issued is if the judge or magistrate can determine without a doubt that there is probable cause. This means that is lies solely with the law enforcement officer to provide the judge or magistrate with the necessary information to issue the warrant. There must be substantial evidence or proof to obtain a warrant. Warrants cannot be issued because the officer has a hunch, there must be concrete proof.

If the judge or magistrate does find that there is probable cause to issue a warrant, the terms of the warrant will be specific. The law enforcement officer will be expected to execute the warrant within the terms authorized by the judge or magistrate. The only officers who are named within the warrant may execute the order. This can be a general title such as the class of officers, or as specific as to identify the officers by their names.

The officers named within the warrant must execute the warrant within a specific amount of time and must announce their presence before entering the premises they intend to search. This usually entails the officers knocking and requesting the resident to let them in to conduct their search allowed by the authority of the warrant. However, people within the premises may not legally have their person searched unless they are specifically named in the warrant. However, any person within the premises may legally be frisked by the law enforcement officers for weapons if the concern exists by the investigating officers.

Once the warrant has been executed, the law enforcement officers who conducted the search are required to leave a copy of the warrant and a notice regarding any property that was seized at the premises.

There are of course exceptions to the search warrant regulations that will be covered under the exclusionary rule.

As mentioned above, there are exceptions which in some cases allow for illegal search and seizure, meaning that no formal or legal warrant has been issued by a judge or magistrate. This can occur when there is not enough time to obtain a warrant and can only be used to contain the area within the arrestee's immediate control and individual person. Under this purpose there are only two legal reasons as to why a law enforcement officer may search a person who is not named within a warrant. The first is due to safety for the officer in their ability to remove any potential weapons that may be used to harm innocent bystanders, the arrestee or the officer. This also applies to any type of weapon that may be used in trying to resist arrest or escaping law enforcement. The other allowance for this rule is the officer may attempt to prohibit the arrestee from hiding or destroying potential evidence. An example of this would be an officer stopping a person from throwing a weapon or drug paraphernalia out of the line of sight or into a river for instance.

Motor vehicles may be searched by a law enforcement officer who has made a lawful arrest of the occupant. This means that once the occupant has been arrested their vehicle may be searched regardless of consent of the occupant. The law enforcement officer may use their authority to search any containers within the vehicle even if they are considered closed. Any compartment within the vehicle may be searched provided it is within reach of the occupant as well as any containers within the vehicle.

Consenting to a warrantless search can cause problems for the arrestee if they do in fact have something to hide. If a person allows the law enforcement officer to search their person, premises or motor vehicle without a warrant, the evidence uncovered can and will be used against the person. Once consent is given, the arrestee relinquishes their rights to object once the search has taken place on constitutional grounds. A warrantless search cannot be executed under the use of coercion or threats by the law enforcement officer against the arrestee. There are many other caveats to this rule of law, for specific aspects of warrantless searches you should check with your local laws regarding this matter.