Requirements for a Search Warrant
August 19th, 2022
The Fourth Amendment to the Constitution of the United States guarantees the right to be free from unreasonable searches and seizures. In most cases, this means that the government needs a warrant to search or seize your property. To be reasonable, a search must be supported by probable cause, and a judge must issue a warrant authorizing the search.
What Is a Search Warrant?
A search warrant is a court order signed by a judge that allows police or other law enforcement officers to search a specific location for specific items or materials.
To obtain a search warrant, police officers must convince a judge that they have probable cause to believe criminal activity is occurring at the place they wish to search or that they believe they will find evidence of illegal activity.
Police officers usually provide affidavits describing their observations or information from private citizens or confidential informants that give them reason to believe criminal activity is occurring.
If the judge finds that the police have established probable cause, the judge will issue a warrant authorizing the police to enter the building to search for items identified in the warrant.
In most cases, the suspect is not present when the police show the judge their evidence. The suspect does not have an opportunity to contest the evidence, and the police officer’s presentation is one-sided. However, the suspect can challenge the validity of the warrant and whether it should have been issued in the first place. If a suspect successfully challenges the search warrant, any evidence obtained from the search cannot be considered when deciding whether the suspect committed a crime.
When Do Police Need a Search Warrant?
Courts have ruled that a search warrant is only required when a person has a “legitimate expectation of privacy” in the place or thing to be searched. If the suspect does not have a reasonable expectation of privacy, no warrant is required.
The United States Supreme Court has created a two-part test to determine whether a person has a legitimate expectation of privacy.
- Did the person have a subjective expectation that the place or thing would be private (i.e., did they believe that the place or thing would remain private)?
- Was the suspect’s expectation of privacy objectively reasonable (i.e., would a reasonable person in a similar situation have the same expectation of privacy)?
The most common example of a place where a search warrant is required is when the police wish to search a person’s home. Most people believe that their home is private (i.e., they have a subjective expectation of privacy), and most people in society believe that this expectation is reasonable (i.e., the expectation of privacy is objectively reasonable). Therefore, the police must obtain a warrant before searching a person’s home.
When Is a Search Warrant NOT Necessary?
There are many exceptions to the search warrant requirement. Courts have identified several situations in which a search warrant is not necessary.
Police do not need a warrant if the suspect consents to the search.
A police officer does not need a warrant if evidence of a crime is in “plain view.” For example, if you invite a police officer into your home and the officer sees marijuana on the table, the officer does not need a warrant to charge you with a crime. Similarly, if you were pulled over for speeding and the officer sees narcotics on the passenger seat, the officer does not need a warrant to examine the substance and place you under arrest.
Search in Connection with an Arrest
During an arrest, police are allowed to search the person being arrested and the area within the suspect’s immediate control. They are allowed to conduct a “protective sweep” to identify other suspects who could pose a threat to the police officer. The sweep often includes areas near the suspect, such as under beds or in closets. The sweep is supposed to be for the protection of the officers, not to collect evidence of a crime.
The police are allowed to conduct a warrantless search if the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Common examples of the emergency exception are if the police believe a suspect is destroying evidence, if they believe a person is in danger (such as in cases involving suspected domestic violence), or when police are in “hot pursuit” and the chase continues into a home.
Stop and Frisk
A police officer can lawfully stop a person if they suspect the person has engaged in criminal activity, and they are allowed to “frisk” the person if they believe the suspect is armed. This is known as a Terry stop. If it leads to the discovery of evidence that the person committed a crime, that evidence is admissible in court.
Fourth Amendment Does Not Apply
The Fourth Amendment only applies to government actors. It does not apply to private actors, including security guards. While a private citizen may be breaking other laws if they search a person’s home or belongings, they have not violated the Fourth Amendment because it only applies to government agents, such as police, the FBI, and other law enforcement agencies.
What Are the Requirements for a Wyoming Search Warrant?
For a search warrant to be valid, it must contain certain key pieces of information. The search warrant must:
- Include an affidavit of probable cause
- Have been issued based on information from a witness or informant
- Be corroborated by another source
- Be signed and sealed by the judge
- Include the specific date and time it was issued
- Identify with particularity the property to be searched
- State the specific property to be seized
- Be executed within a specific time from the date it was issued, not to exceed ten days
- Be executed between the hours of 6:00 a.m. and 10:00 p.m. unless the judge expressly authorizes execution at a different time
What Should You Do If Police Have a Search Warrant?
If police officers have a valid search warrant, they can enter the place to be searched with or without your consent. However, there are important steps you can take to protect yourself and limit additional exposure to criminal liability.
While police officers are not required to be truthful when investigating a crime, there are not allowed to lie about having a search warrant. If they state that they have a search warrant, you should let them in.
You have the right to ask to examine the warrant. But if you do not ask to see it, they are not required to show it to you.
Look closely at the search warrant. The officer may have made a mistake about the address to be searched. Asking to see the warrant could clear up this type of confusion.
The warrant should specify the specific area to be searched. In most cases, the warrant will identify a building to be searched, and the police are allowed to search the entire building. It will also specify the type of evidence the police are seeking.
Finally, be courteous to the police, but do not consent. Be respectful while still asserting your rights. For example, if the warrant calls for a search of your home and the police ask to search your car, you can ask whether the car was specified in the search warrant. If it was not, you are not required to consent to a search of the vehicle.
You may believe the officer has exceeded the bounds of the search warrant or is violating your rights. In the moment, there is little you can do. Your remedy is to contact an experienced criminal defense lawyer and seek to have the evidence excluded by filing a motion to suppress evidence that was illegally obtained.
Just Criminal Law Protects Your One Shot at Justice
If you have been charged with a crime, Just Criminal Law can help. Our lawyers are former prosecutors who have extensive experience dealing with search warrants. Today, we use that experience to defend people who have been accused of committing crimes.
We have a demonstrated record of success and will mount an aggressive defense to defend our clients against criminal charges.
To learn more about how we can help, contact us today to schedule your personalized case review and strategy session.
DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.
Categories: Criminal Charges - General Questions