SEARCH WARRANT

The fourth amendment to the Constitution prohibits unreasonable searches and seizures and provides that "No Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Framers adopted the warrant clause in response to the use by British customs officers of general warrants, known as writs of assistance, to enforce British trade laws.

A writ of assistance conveyed virtually unbridled discretion to search under the authority of the Crown. The writ was not required to be based on any facts giving reason to believe that a crime had been committed. Nor did it contain an inventory of things to be taken, the names of alleged offenders, or any limitation on the places to be searched. Once issued, a writ remained valid during the lifetime of the reigning sovereign.

Judicial interpretations of the warrant clause have expressed a strong preference for the use of a neutral and detached magistrate over the "hurried action" of a police officer engaged in the often competitive enterprise of ferreting out crime. Since coolidge v. new hampshire (1971) searches conducted outside the judicial process have been considered by the Supreme Court to be unreasonable per se unless they fall within one of the exceptions to the warrant requirement.

A magistrate who issues a search warrant may not occupy a dual role, both reviewing the facts presented to justify the warrant and actively participating in the criminal investigation or prosecution. Such a dual role creates a conflict of interest that is inimical to the objectives of the warrant clause. As the Supreme Court observed in united states v. united states district court (1972), the Fourth Amendment protections cannot be properly guaranteed if searches "may be conducted solely within the discretion of the Executive Branch."

An important part of the Fourth Amendment's proscription against general warrants is that a warrant may be issued only upon probable cause. This requirement necessarily limits each warrant to a particular set of circumstances relating to a suspected criminal offense. The alleged facts must establish a reasonable basis to believe that the offense was committed and that contraband or evidence of the offense is located at the place to be searched. Although a finding of probable cause may rest upon hearsay or other evidence that would not be admissible at trial, the issuing magistrate must nonetheless carefully consider the reliability of such evidence. According to illinois v. gates (1983), in assessing probable cause, a magistrate must make a "practical, commonsense" decision in view of all the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of the persons supplying the information.

The information that forms the basis for the search warrant must be sworn to by "oath and affirmation" at the time the warrant is issued. To ensure an independent review by the magistrate, the oath must attest to facts and circumstances, not merely to the affiant's conclusion that he believes he has probable cause for the search. Moreover, an insufficient affidavit cannot be rehabilitated later by testimony concerning facts known by the affiant or otherwise available, but not disclosed to the magistrate at the time of issuance of the warrant. A contrary rule, of course, would render the warrant requirement meaningless.

An important issue that remained unresolved until Franks v. Delaware (1978) was whether the accuracy of the information relied on to justify a search warrant may be challenged. In Franks the Supreme Court held that if it can be shown that the affiant intentionally or recklessly gave false or misleading information to the magistrate, a reviewing court may invalidate the warrant if the magistrate's finding of probable cause was based on the misinformation.

The warrant clause also precludes the issuance of general search warrants, for it commands that the warrant describe with particularity the place to be searched and the objects to be seized. In Gouled v. United States (1921) the Supreme Court held that law enforcement officers could not seize property, even though particularly described in a search warrant, when the property was merely of evidentiary value in a criminal proceeding. This mere evidence rule, which attempted to distinguish between mere evidence and contraband or other property that was a fruit or instrumentality of a crime, was both unsound and lacking in reason and historical support. The Court abandoned the rule in warden v. hayden (1967).

The purpose of the particularity requirement is to limit implicitly the scope of what the officer executing the warrant may do. As the Court stated in Marron v. United States (1927): "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." With respect to the place to be searched, the description must be such that the officer executing the warrant can, with reasonable effort, ascertain and identify the place intended.

As a practical matter, of course, law enforcement officers may not be completely divested of all discretion in executing search warrants. Moreover, notwithstanding the language in Marron, the Court has held that incriminating evidence not listed in a search warrant may be seized when observed in plain view by officers executing the warrant, provided that the officers inadvertently come upon the evidence. The particularity requirement, however, greatly circumscribes the officer's discretion and therefore plays an important role in minimizing the likelihood of police abuse.

James R. Asperger
(1986)

Bibliography

La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Vol. 2:1–213. St. Paul, Minn.: West Publishing Co.

Lasson, Nelson B. 1937 The History and Development of the Fourth Amendment to the United States Constitution. Baltimore: Johns Hopkins University Press.