Search warrant
Encyclopedia
A search warrant is a court order
issued by a Magistrate
, judge
or Supreme Court Official that authorizes law enforcement
officers to conduct a search
of a person or location for evidence
of a crime
and to confiscate
evidence if it is found.
Jurisdictions that respect the rule of law
and a right to privacy put constraints on the powers of police investigators, and typically require search warrant
s, or an equivalent procedure, for searches conducted as part of a criminal investigation. An exception is usually made for "hot pursuit": if a criminal flees the scene of a crime and the police officer follows him, the officer has the right to enter a property in which the criminal has sought shelter. Conversely, in authoritarian regimes, the police typically have the right to search property and people without having to provide justification, or without having to secure the permission of a court.
to provide evidence to support the warrant application. In the vast majority of cases where the police already hold someone in custody, searches of premises can be made without a search warrant under Section 18 of the Police and Criminal Evidence Act
(PACE), which requires only the authority of a Police Inspector.
Searches under Section 18 Police and Criminal Evidence Act
can be conducted immediately by a Constable without the requirement for an Inspector's authorisation under Section 18(5)a of PACE. This subsection allows a Constable to search the address of a suspect(s) under arrest in their presence before being presented to a police station (or other custody suite).
If a person is arrested on their own property or just after leaving their premises, a Constable may immediately search both them and the immediate area where the person was under Section 32 of PACE.
, most searches by the police require a search warrant based on probable cause
, although there are exceptions. Any police entry of an individual's home always requires a warrant (for either search or arrest), absent exigent circumstance
s, or the free and voluntary consent of a person with reasonably apparent use of or control over the property.
Under the Fourth Amendment, searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. may require additional search warrants.
In the U.S. state of Indiana
following a decision by the Indiana Supreme Court, residents no longer have the right to resist unlawful (i.e. without permission, without a warrant) entry by police into their homes. Following a 3-2 decision Justice Steven David disclosed his belief that "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment
jurisprudence."
To obtain a search warrant, an officer must first prove that probable cause exists before a magistrate or judge, based upon direct information (i.e. obtained by the officer's personal observation) or hearsay
information. Hearsay information can even be obtained by oral testimony given over a telephone, or through an anonymous or confidential informant, so long as probable cause exists based on the totality of the circumstances. Both property and persons can be seized under a search warrant. The standard for a search warrant is lower than the quantum of proof required for a later conviction. The rationale is that the evidence that can be collected without a search warrant may not be sufficient to convict, but may be sufficient to suggest that enough evidence to convict could be found using the warrant.
U.S. police do not need a search warrant to search a vehicle they stop on the road or in a non-residential area if they have a probable cause to think that it may contain contraband or evidence of a crime. In that case, police may search the passenger compartment, trunk, and any containers inside the vehicle capable of holding the suspected article. By comparison, under Australian law, police can exhaustively search any vehicle on a public road, and any electronic devices therein (mobile phone, computer), without the responsible persons' permission, for evidence of criminal acts, with or without proof or suspicion of any kind.
Police do not need a search warrant, or even probable cause, to perform a limited search of a suspect's outer clothing for weapons, if police have a reasonable suspicion to justify the intrusion - a Terry 'stop and frisk.'
In the United States
, the issue of federal warrants is determined under Title 18 of the United States Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure
. Federal search warrants may be prepared on Form AO 93, Search and Seizure Warrant. Each state also enacts its own laws governing the issuance of search warrants.
A customs or immigration officer of the United States of America is not required
to have any warrant, reasonable suspicion, or consent to search persons, vehicles, baggage, or cargo that have border nexus
; regardless of citizenship or origin. This is clearly stated in 19 U.S.C. 1467, 19 C.F.R. 162.6, and noted in the US Constitution.
is given by a person in control of the object or property to be searched. Some commonly cited exigent circumstances are: hot pursuit
of a felon
(to prevent a felon's escape or ability to harm others); imminent destruction of evidence
before a warrant can be properly obtained; emergency searches (such as where someone is heard screaming for help inside a dwelling); or a search incident to arrest (to mitigate the risk of harm to the arresting officers specifically).
Another exception is when evidence is in plain view
- if the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately obvious that the evidence is contraband (for example, a cannabis cigarette on the front seat of a car while the officer has pulled the suspect over for a seat belt violation), the officer is within his right to seize the object in question.
When police arrest an individual shortly after exiting a vehicle, the police may conduct a full search of the suspect's person, any area within that person's immediate reach, and the passenger compartment of the vehicle which was recently occupied, for weapons or any other contraband. (However, a recent Supreme Court decision limits such searches to circumstances where the arrested person has the possibility of accessing the vehicle, or when the vehicle could contain evidence of the crime that the person is being arrested for.) If the subject is arrested in a home, police may search the room in which they were arrested, and conduct a 'protective sweep' of the premises where there is reasonable suspicion that other individuals may be hiding. Searches are also allowed in emergency situations where the public is in danger.
With rented property, a landlord
may refuse to allow law enforcement to search a tenant's apartment without a search warrant, and a warrant must be obtained using the same guidelines as if it was a tenant's own home. But in some jurisdictions, a hotel
room may be searched with permission of the hotel's management but without permission from a guest and without a warrant.
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
issued by a Magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
, judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or Supreme Court Official that authorizes law enforcement
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
officers to conduct a search
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
of a person or location for evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
of a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
and to confiscate
Confiscation
Confiscation, from the Latin confiscatio 'joining to the fiscus, i.e. transfer to the treasury' is a legal seizure without compensation by a government or other public authority...
evidence if it is found.
Jurisdictions that respect the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and a right to privacy put constraints on the powers of police investigators, and typically require search warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
s, or an equivalent procedure, for searches conducted as part of a criminal investigation. An exception is usually made for "hot pursuit": if a criminal flees the scene of a crime and the police officer follows him, the officer has the right to enter a property in which the criminal has sought shelter. Conversely, in authoritarian regimes, the police typically have the right to search property and people without having to provide justification, or without having to secure the permission of a court.
United Kingdom
Search warrants are issued by a local Magistrate and require a ConstableConstable
A constable is a person holding a particular office, most commonly in law enforcement. The office of constable can vary significantly in different jurisdictions.-Etymology:...
to provide evidence to support the warrant application. In the vast majority of cases where the police already hold someone in custody, searches of premises can be made without a search warrant under Section 18 of the Police and Criminal Evidence Act
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...
(PACE), which requires only the authority of a Police Inspector.
Searches under Section 18 Police and Criminal Evidence Act
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...
can be conducted immediately by a Constable without the requirement for an Inspector's authorisation under Section 18(5)a of PACE. This subsection allows a Constable to search the address of a suspect(s) under arrest in their presence before being presented to a police station (or other custody suite).
If a person is arrested on their own property or just after leaving their premises, a Constable may immediately search both them and the immediate area where the person was under Section 32 of PACE.
United States of America
Under the Fourth Amendment to the United States ConstitutionFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
, most searches by the police require a search warrant based on probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
, although there are exceptions. Any police entry of an individual's home always requires a warrant (for either search or arrest), absent exigent circumstance
Exigent circumstance
An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant, or if they have a "knock and announce" warrant, without knocking and waiting for refusal under certain circumstances...
s, or the free and voluntary consent of a person with reasonably apparent use of or control over the property.
Under the Fourth Amendment, searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. may require additional search warrants.
In the U.S. state of Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
following a decision by the Indiana Supreme Court, residents no longer have the right to resist unlawful (i.e. without permission, without a warrant) entry by police into their homes. Following a 3-2 decision Justice Steven David disclosed his belief that "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment
Fourth Amendment
Fourth Amendment may refer to the:*Fourth Amendment to the United States Constitution—part of the Bill of Rights, prohibiting unreasonable searches and seizures....
jurisprudence."
To obtain a search warrant, an officer must first prove that probable cause exists before a magistrate or judge, based upon direct information (i.e. obtained by the officer's personal observation) or hearsay
Hearsay in United States law
Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, "Sally told me Tom was in town," as opposed to "I saw Tom in...
information. Hearsay information can even be obtained by oral testimony given over a telephone, or through an anonymous or confidential informant, so long as probable cause exists based on the totality of the circumstances. Both property and persons can be seized under a search warrant. The standard for a search warrant is lower than the quantum of proof required for a later conviction. The rationale is that the evidence that can be collected without a search warrant may not be sufficient to convict, but may be sufficient to suggest that enough evidence to convict could be found using the warrant.
U.S. police do not need a search warrant to search a vehicle they stop on the road or in a non-residential area if they have a probable cause to think that it may contain contraband or evidence of a crime. In that case, police may search the passenger compartment, trunk, and any containers inside the vehicle capable of holding the suspected article. By comparison, under Australian law, police can exhaustively search any vehicle on a public road, and any electronic devices therein (mobile phone, computer), without the responsible persons' permission, for evidence of criminal acts, with or without proof or suspicion of any kind.
Police do not need a search warrant, or even probable cause, to perform a limited search of a suspect's outer clothing for weapons, if police have a reasonable suspicion to justify the intrusion - a Terry 'stop and frisk.'
Terry stop
In the United States, a Terry stop is a brief detention of a person bypoliceon reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.The name derives from Terry v. Ohio, 392 U.S...
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the issue of federal warrants is determined under Title 18 of the United States Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure
Federal Rules of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...
. Federal search warrants may be prepared on Form AO 93, Search and Seizure Warrant. Each state also enacts its own laws governing the issuance of search warrants.
A customs or immigration officer of the United States of America is not required
Border search exception
The border search exception is a doctrine of United States criminal law that exempts searches of travelers and their property from the Fourth Amendment warrant requirement....
to have any warrant, reasonable suspicion, or consent to search persons, vehicles, baggage, or cargo that have border nexus
Border control
Border controls are measures used by a country to monitor or regulate its borders.The control of the flow of many people, animals and goods across a border may be controlled by government Customs services. Security is enforced by various kinds of Border Guards and Coast Guards...
; regardless of citizenship or origin. This is clearly stated in 19 U.S.C. 1467, 19 C.F.R. 162.6, and noted in the US Constitution.
Exceptions
In certain cases a search warrant is not required, such as where consentConsent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
is given by a person in control of the object or property to be searched. Some commonly cited exigent circumstances are: hot pursuit
Immediate pursuit
Immediate pursuit is a common law principle describing rules of engagement to enter into combat with or apprehend and forcibly detain another, invade one's privacy, etc. Immediate pursuit enables, for example, a citizen to arrest a person committing some offence, without incurring legal liability...
of a felon
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
(to prevent a felon's escape or ability to harm others); imminent destruction of evidence
Spoliation of evidence
In law, spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding...
before a warrant can be properly obtained; emergency searches (such as where someone is heard screaming for help inside a dwelling); or a search incident to arrest (to mitigate the risk of harm to the arresting officers specifically).
Another exception is when evidence is in plain view
Plain view doctrine
The plain view doctrine allows an officer to seize--without a warrant--evidence and contraband found in plain view during a lawful observation. This doctrine is also regularly used by TSA Federal Government Officers while screening persons and property at U.S...
- if the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately obvious that the evidence is contraband (for example, a cannabis cigarette on the front seat of a car while the officer has pulled the suspect over for a seat belt violation), the officer is within his right to seize the object in question.
When police arrest an individual shortly after exiting a vehicle, the police may conduct a full search of the suspect's person, any area within that person's immediate reach, and the passenger compartment of the vehicle which was recently occupied, for weapons or any other contraband. (However, a recent Supreme Court decision limits such searches to circumstances where the arrested person has the possibility of accessing the vehicle, or when the vehicle could contain evidence of the crime that the person is being arrested for.) If the subject is arrested in a home, police may search the room in which they were arrested, and conduct a 'protective sweep' of the premises where there is reasonable suspicion that other individuals may be hiding. Searches are also allowed in emergency situations where the public is in danger.
With rented property, a landlord
Landlord
A landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...
may refuse to allow law enforcement to search a tenant's apartment without a search warrant, and a warrant must be obtained using the same guidelines as if it was a tenant's own home. But in some jurisdictions, a hotel
Hotel
A hotel is an establishment that provides paid lodging on a short-term basis. The provision of basic accommodation, in times past, consisting only of a room with a bed, a cupboard, a small table and a washstand has largely been replaced by rooms with modern facilities, including en-suite bathrooms...
room may be searched with permission of the hotel's management but without permission from a guest and without a warrant.
See also
- Arrest warrantArrest warrantAn arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
- National Security LetterNational Security LetterA National Security Letter is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. They require no probable cause or judicial oversight...
- No-knock warrant, to enter a property without occupant notification
- Sneak and peek warrantSneak and peek warrantA sneak and peek search warrant is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner’s or the occupant’s permission or knowledge and to clandestinely search the premises; usually, such entry requires a...
, to clandestinely look inside a property - Sugar bowl (legal maxim)Sugar bowl (legal maxim)In United States constitutional law and criminal procedure, the sugar bowl refers to a legal maxim relating to one of the restrictions on searches and seizures imposed by the Fourth Amendment to the United States Constitution, which is that "if you are looking for stolen televisions, you cannot...
- Writ of AssistanceWrit of AssistanceA writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...