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
Lasson, Nelson B. 1937 The History and Development of the Fourth Amendment to the United States Constitution. Baltimore: Johns Hopkins University Press.
A court order authorizing the examination of a place for the purpose of discovering contraband, stolen property, or evidence of guilt to be used in the prosecution of a criminal action.
A search warrant is a judicial document that authorizes police officers to search a person or place to obtain evidence for presentation in criminal prosecutions. Police officers obtain search warrants by submitting affidavits and other evidence to a judge or magistrate to establish probable cause to believe that a search will yield evidence related to a crime. If satisfied that the officers have established probable cause, the judge or magistrate will issue the warrant.
The fourth amendment to the U.S. Constitution states that persons have a right to be free from unreasonable searches and seizures and 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." State constitutions contain similar provisions.
The U.S. Supreme Court has not interpreted the Fourth Amendment to mean that police must always obtain a search warrant before conducting a search. Rather, the Supreme Court holds that a search warrant is required for a search unless it fits into a recognized exception.
The exceptions to the search warrant requirement are numerous. One common exception is the search of a person incident to a lawful arrest. The Supreme Court held in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), that an officer may search the arrestee as well as those areas in the arrestee's immediate physical surroundings that may be deemed to be under the arrestee's control. Other exceptions to the warrant requirement include situations in which an officer is in hot pursuit of a person, in which an emergency exists, and in which the item to be searched is mobile, such as an automobile. Similarly, searches at public way checkpoints, airports, and international borders may be conducted without first obtaining a search warrant.
To obtain a search warrant, an officer must personally appear before, or speak directly with, a judge or magistrate. The officer must present information that establishes probable cause to believe that a search would yield evidence related to a crime. Probable cause exists when an officer has either personal knowledge or trustworthy hearsay from an informant or witness. The officer must fill out an affidavit stating with particularity the person to be seized and searched, the area to be searched, and the objects sought. The warrant need not specify the manner in which the search will be executed.
The officer must sign the affidavit containing the supporting information establishing the grounds for the warrant. By signing the affidavit, the officer swears that the statements in the affidavit are true to the best of his or her knowledge. A police officer who lies when obtaining a warrant may be held personally liable to the searched person. According to the Supreme Court's ruling in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), however, a police officer is not personally liable for a wrongful search if a reasonable officer could have believed that the warrantless search would be lawful in light of clearly established law and the information the officer possessed at the time.
Following the september 11th attacks in 2001, the United States government sought to expand the means by which law enforcement personnel could investigate potential terrorist activities. The usa patriot act of 2001, Pub. L. No. 107-56, 115 Stat. 272, created and expanded a number of exceptions to the traditional search warrant requirements. Although a person subject to a search warrant is ordinarily entitled to notice that the warrant was issued, the USA PATRIOT Act allows magistrates to issue socalled "sneak and peak" warrants, which do not require police to notify the person subject to the search. Moreover, the act expanded the abilities of officers to install "roving" wiretaps of telephones and other communications devices used by individual suspects without naming the specific telephone carrier in the warrant. The act also expanded police officers' abilities to search stored e-mail and voicemail messages.
Although the provisions of the USA PATRIOT Act are purportedly designed to
enhance the ability of law enforcement agencies to prevent terrorist activities against the United States, many of these provisions can be applied to U.S. citizens who are not engaged in such activities. Several commentators and organizations, such as the american civil liberties union, have criticized the act because of its detrimental impact on civil liberties. Supporters of the act counter that the attacks on September 11, 2001, could have been prevented if law enforcement had available to them some of the tools provided under the new law.
Bloom, Robert M. 2003. Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger.
Guidelines for the Issuance of Search Warrants. 1990. Chicago: American Bar Association, Criminal Justice Section.
Pitowsky, Robert A. 2002. "An Overview of the Law of Electronic Surveillance Post September 11, 2001." Law Library Journal (fall).
Rotenberg, Marc. 2002. "Privacy and Secrecy after September 11." Minnesota Law Review (June).