Of all the legal concepts, few are as simple or potentially complex as executing a legal search. In most cases, a search warrant is required for the search to be valid. In a few instances, however, law enforcement personnel can execute a search without a warrant, including using probable cause or an emergency as a justification.
Not understanding how searches work, though, is a mistake because, for most people, the only exposure to a law enforcement search they will have will be of the warrantless type.
If you need a criminal defense attorney now or want to ensure you are prepared should you encounter a warrantless search, here are the details you need to know.
Search Warrant Basics
You are protected by illegal searches and seizures by the 4th Amendment of the United States Constitution. This amendment guarantees that searches will be done under warrant, except in prescribed circumstances, and that the warrant will detail what is to be searched and where the search will take place.
The way a warrant is issued is when someone from law enforcement has a hearing with a judge. During the hearing, law enforcement personnel present to the court investigative findings that lead them to believe an official search will yield evidence of a crime. Evidence of a crime can be both evidence a crime was committed or is being committed.
Once the warrant is issued, the search is executed. Depending on what is being searched, the target of the search is presented with the warrant and must provide police full cooperation. Full cooperation includes, but is not limited to:
- Surrendering to law enforcement and consenting to a search
- Giving law enforcement access to the premises covered under the warrant
- Providing law enforcement access tools necessary to execute the warrant
If the target of the search, or if the search covers property, the person residing at the property or possessing the property, does not cooperate, they can be arrested.
Law enforcement searches the property covered in the warrant and collects any evidence of a crime being committed or a crime that has been committed. That evidence can be used against the target of the search to justify charges and in court to make a case for conviction.
Warrants Are Usually Very Specific
Search warrants rarely permit a “fishing expedition.” The law enforcement personnel requesting the warrant must finely detail what is to be searched. They must restrict their search to what they request to search, barring the revelation of evidence that would justify an expansion of the search.
Every search warrant covers the following:
- The target to be searched
- The location of the search
- The time of the search
- Items law enforcement is searching for
Examples of what law enforcement might look for include:
- Evidence of criminal activity
What they find is seized, documented, and entered into evidence to be used to build a criminal case against the target of the warrant.
How Are Search Warrants Granted?
To get a search warrant, a prosecutor or police personnel present evidence of a crime or suspected crime to a judge. The evidence is called “probable cause” and can be items or behavior. Law enforcement details the crime they think is being committed, the evidence they think they will find, and the probable cause that leads them to their conclusions.
Probable cause is the belief that an officer has observed enough circumstantial evidence to warrant escalating their activity to constitute a search. Seeing drug paraphernalia on a passenger seat during a traffic stop is probable cause to search a vehicle. Finding blood at a suspect’s house is also a probable cause.
The concept of probable cause can be used both to secure a search warrant and to justify a warrantless search. In both cases, law enforcement must prove the probable cause and that the probable cause justifies their action. The evidence collected can be suppressed if the probable cause is not legitimate.
An official search warrant application presents evidence of a crime or suspected criminal activity. The applications lists:
- Evidence the police expect to find, whether it is evidence of a crime or items suspected of being used in a crime (cell phones, computers, cameras, etc.)
- A specific location the search is to be conducted
- The grounds that establish the search as warranted and legal
If the evidence presented is compelling enough to the judge, they will issue the search warrant.
Limitations to a Search Warrant
In the majority of cases, search warrants must be “point-specific.” The police must list what they are expecting to find. They cannot look for items that are not listed on the warrant. If, for example, a warrant is issued for a search for drugs in a house, the search cannot become a “sweep” of all possible evidence of any crime the police can imagine.
Likewise, the search warrant covers specific property. For example, a search warrant for drugs in a house does not include searching every building on a property. To do that, law enforcement must get a warrant to search everything on a property.
Police can only seize items listed on the warrant, but if they discover evidence of other crimes while executing the search warrant, they can expand their search or search warrant or seize evidence of other criminal acts.
Search Warrant Exceptions
Law enforcement can conduct a search without a warrant in a few different ways.
Evidence in Plain View
If, while performing law enforcement duties, the officer executing a legal search under a warrant discovers evidence of a crime, the officer can seize that evidence to build new charges against the accused.
If you give law enforcement permission to search, they do not need the warrant to execute that search. When you consent, you waive your right to contest the search afterward or contest the admissibility of any evidence law enforcement discovers. It is best to give your defense attorney a call before doing so.
In some cases, a warrantless search is permissible if the officer involved feels the search will yield evidence to help resolve a crisis, even without consent. For example, they might search premises to find evidence of a missing child or when someone’s life is suspected to be in danger.
What constitutes an emergency is often questioned in court, particularly regarding admissible evidence and probable cause. An officer must justify search findings if the defense contests the basis for the warrantless search. That evidence can be suppressed if law enforcement cannot justify the emergency.
Make Sure You Have a Qualified Criminal Defense Attorney Backing You
The best way to ensure that any search warrant executed against you is legal is to consult an expert criminal defense attorney. You do not want to try and contest evidence from a search by yourself, even if there’s no probable cause. Contact CJB Law today to get started.