When Is a Search Warrant Necessary?

Police and other law enforcement agencies have an interest in investigating and preventing crime. Citizens have an interest in protecting the privacy of their homes and their personal property. How do we balance these interests?

One way is search warrants, and the requirement that police officers demonstrate probable cause before they can search or seize someone’s property.

The Warrant Requirement

The Constitution’s Fourth Amendment protects Americans “against unreasonable searches and seizures” and recognizes their right “to be secure in their persons, houses, papers, and effects.”

This language creates a general obligation for law enforcement personnel to obtain a warrant before searching you or your property.

The Warrant Process

The Fourth Amendment also requires that law enforcement provide probable cause to obtain a search warrant. This means that officers must demonstrate a reasonable belief that the search will reveal evidence of a crime and the warrant must list the specific location of the search and items for which officers want to search.

Whether a warrant is issued is based on judicial review. A judge will determine if law enforcement has demonstrated probable cause for the search and met its burden of specificity before issuing the warrant.

It’s important to know that the owner of the property or subject of the search does not have a right to be present during this proceeding or have an opportunity to challenge the warrant before the court issues it. However, you may argue that officers misled the judge or that the judge improperly granted the search warrant in later proceedings.

The Warrant Exceptions

There are a few exceptions to the search warrant requirement when law enforcement may conduct a search without first obtaining a warrant. These include:

• Consent: Officers may request to enter your home or search your belongings. If you give law enforcement express permission to conduct the search, they don’t need to get a warrant.
• Plain view doctrine: Officers also don’t need a search warrant to obtain evidence for which they don’t have to search, or in other words, is in “plain view.” For example, if an officer sees you committing a crime in public, they can arrest you, search you, and keep any evidence without a warrant.
• Hot pursuit: Police do not need to stop and apply for a warrant to obtain evidence if they are in “hot pursuit” of a fleeing criminal. For instance, if a cop witnesses a theft, they can chase the suspect to make an arrest, even following them into in a private residence. The police don’t need a search warrant to enter the home or collect evidence they find inside.
• Exigent circumstances: Police do not need to obtain a search warrant if they reasonably believe that evidence could be destroyed or if someone’s safety may be placed in danger in the time it would take to secure the warrant.
• Search incident to arrest: Finally, police officers don’t need a warrant to search a person whom they’re taking into custody, and they may search their immediate surroundings as well, based on officer safety.

Search warrants are one way to balance a citizen’s constitutional rights and privacy interests with the government’s crime-fighting concerns. To protect their rights, people should know that police officers generally must get a valid search warrant before they conduct a search. And they should also be aware that there are exceptions to that rule.