The U.S. Constitution protects us from unreasonable government intrusion. Specifically, the Fourth Amendment limits law enforcement’s ability to search or seize you or your property. Sometimes, this protection comes in the form of a search warrant.
The Fourth Amendment is found in our federal constitution. States also have their own constitutions and statutes, which may provide the same or more protection than the Fourth.
Whether state or federal, laws on search and seizure generally provide that officers can’t search you, your belongings, or your home, or seize anything from you—or even seize you—without reasonable justification. Usually, this justification is probable cause. And sometimes probable cause must be established through a warrant.
What Is a Search Warrant?
A search warrant is a document signed by a judicial officer or magistrate who is “neutral”—generally meaning not associated with law enforcement. The warrant must include a detailed description of the place or thing—or even person—to be searched and of whatever is to be seized. But the amount of detail a warrant really requires isn’t overwhelming.
For a search of a house, for example, it’s typically enough to identify the address. And even broad descriptions of the kinds of evidence officers can seize will often suffice. The U.S. Supreme Court once approved warrants that called for specified items “together with other fruits, instrumentalities and evidence of crime at this (time) unknown.” (Andresen v. Maryland, 427 U.S. 463 (1976).)
Warrants have to be somewhat specific and at least moderately timely. The rule for federal court is a good illustration—generally requiring that warrants indicate that they are to be carried out within 14 days and between 6:00 a.m. and 10:00 p.m. (Fed. R. Crim. P. 41(e).)
When Is a Search Warrant Needed?
Officers often don’t need warrants in order to carry out lawful searches. In fact, courts have recognized so many exceptions to the warrant requirement that some argue the exceptions have all but swallowed the rule.
The Many Exceptions to the Search Warrant Requirement
Here are just a few of the scenarios that allow law enforcement to act without warrants:
- Someone with control over the place or item to be examined consents to a search.
- Police who are legally entitled to be where they are notice something incriminating in “plain view.”
- An officer searches someone immediately after arrest.
- An officer conducts a “stop and frisk,” detaining and patting down someone reasonably suspected of committing a crime and of being armed and dangerous.
Can Police Enter a Home or Private Property Without a Search Warrant?
Despite these exceptions, though, officers clearly need to get warrants in some circumstances, such as when they want to search a home. In a typical situation—where, for instance, there isn’t an emergency—the police will need to get a warrant to enter your house without your consent.
Officers occasionally need warrants in other situations, too, usually where the search is particularly invasive. For example, if a car is parked on private property and there’s no reason for urgency, they might have to get a warrant. They also have to get warrants to search the cell phones of people they arrest. And, unless there’s some kind of emergency, they typically have to collect a warrant in order to intrude into someone’s body (for example, taking blood). (Riley v. California, 573 U.S. 373 (2014); Schmerber v. California, 384 U.S. 757 (1966).)
How Do Officers Get Search Warrants?
To get a warrant, an officer must describe facts that establish probable cause to believe that whatever will be searched contains evidence of a crime. The typical warrant application involves a written affidavit, but sometimes officers can even apply by phone. The officer applying for the warrant must swear to the factual statement.
Suppose detectives suspect Jesse of selling methamphetamine out of his house. They’ve received tips from known, reliable informants to that effect. They’ve also surveilled his house, observing suspicious characters going into the home for only moments at a time and departing with conspicuous packages. In order to search his home, the officers would apply for a warrant and include a description of the above facts.
How Long Does It Take to Get a Search Warrant?
Getting a search warrant can take a few hours, days, or weeks. It depends on the complexity of the case, the availability of the judge or magistrate, the available technology, and how credible the information is.
For instance, a police officer might be able to secure a search warrant for a blood draw of an impaired driver in just a matter of minutes if the technology allows. In many jurisdictions, officers can apply for warrants remotely. Judges can take sworn testimony from the officer and review the application over the phone, email, or video conferencing. To search someone's office or home in a complex white-collar case, on the other hand, police might need days or weeks to gather evidence and file an application that supports probable cause for the warrant. After which, the judge needs time to review the application and make a decision.
How Do Search Warrants Work?
Once they have a warrant, officers have to comply with it.
Limits to a Search With a Warrant
The police must limit any inspection to the area the warrant describes. For instance, a warrant calling for a search of a particular cellphone owned by a suspect won’t justify a search of all that suspect’s electronics. Plus, officers may look only where an object of their search might reasonably be. If they’re looking for a 55-gallon drum of methylamine, they can’t open a small drawer.
On the other hand, if agents happen to notice obviously incriminating evidence that isn’t described in the warrant, they can usually grab it because of the plain view doctrine.
Do Officers Need to Knock Before Entering a Home With a Search Warrant?
Before carrying out a search warrant for a home, officers must typically provide “knock notice”—that is, announce themselves and their reason for being there. Usually only after the occupant has denied them entry or no one has responded may they break through an entrance.
However, the U.S. Supreme Court has held that officers don’t need to knock and announce themselves when there’s a threat of violence or reason to believe the occupants will destroy evidence. If the officers learn this information at the scene, these exigent circumstances may excuse them from knocking and announcing. (Hudson v. Michigan, 547 U.S. 586 (2006).)
What Is a No-Knock Warrant?
An officer can also request a “no-knock warrant” from a judge ahead of time if they have a reasonable belief that providing notice before entering would be dangerous or result in the destruction of evidence.
Several states, though, strictly regulate or prohibit the use of no-knock warrants. Busting into homes in the middle of the night with guns raised tends to evoke scared and violent responses from homeowners. These raids can result in extensive property damage, injuries, and sometimes the deaths of both citizens and police. In egregious cases, officers force their way into the wrong home and kill innocent people.
Can a Suspect Challenge a Search Warrant?
Neither suspects nor their lawyers have a chance to thwart a warrant before it’s been issued. That’s because the procedure to get a warrant is “ex parte” (“from one party”); it involves only law enforcement (and the judge or magistrate who rules on the warrant request).
Because defendants normally can’t contest searches before they happen, they’re left to challenge them after the fact.
Exceeding the Scope of a Warrant
If officers exceed the scope of a warrant—meaning they search beyond what the warrant allows—a judge will normally suppress the illegally obtained evidence. In one case, for example, officers had a warrant authorizing them to search the suspect’s “person.” The officers used the warrant as a justification for an endoscopy procedure that turned up a packet of heroin from the suspect’s stomach. An appeals court found that the procedure exceeded the scope of what a reasonable officer would have believed the warrant allowed. The evidence was therefore inadmissible. (U.S. v. Nelson, 36 F.3d 758 (8th Cir. 1994).)
Invalid Warrant
What if the warrant itself is invalid? Usually, a warrant being defective—for example, because an officer lied about the existence of probable cause—means the search is unconstitutional. Evidence the search uncovers will be excluded from trial.
But the U.S. Supreme Court has ruled that “the exclusionary rule” doesn’t apply if the police reasonably believe that a warrant is valid. In a relevant case, an officer applied for and obtained a warrant from a judge. After the fact, another judge determined that the officer’s affidavit didn’t establish probable cause for the search. But because the officer had acted in what the Court termed “good faith,” the Justices determined that the relevant evidence shouldn’t be excluded. (U.S. v. Leon, 468 U.S. 897 (1984).)
Speak With an Attorney
If you believe you've been the target of an unlawful search, consult a criminal defense or civil rights attorney to understand your rights and any potential remedies.