One of the greatest freedoms protected by the US Constitution is your right to privacy, that is, the right to be free from government interference and intrusion. The Fourth Amendment protects your privacy by limiting law enforcement agents' power of search and seizure. Generally, this means that they can't search you or your home or seize your personal property without having a good reason for doing so. And, unless some specific exception applies, they have to have a warrant before they make a search or seizure.

What's a Search Warrant and How Do They Get One?

Think of a search warrant as a special permission slip. It allows law enforcement agents or officers to search a specific place or area at a specific time and seize specific items. For example, say that detectives from the local police department believe you're involved in trafficking or selling marijuana out of your home. The detectives may ask for a search warrant authorizing them to search your home at 10 P.M. and seize any marijuana they find there.

To get a warrant, agents need to:

  • Ask a neutral and detached magistrate or judge for a warrant. A "magistrate" is similar to a judge. He's usually an attorney or retired judge who's been hired by the court to handle certain matters to ease the judges' busy schedules. "Neutral and detached" means that the magistrate isn't involved in the case or the investigation and doesn't have a personal bias or "axe to grind" with the suspect. Persons who aren't neutral and detached include police officers, a district attorney, state attorney general or a justice of the peace who receives a fee for each warrant issued
  • Convince the magistrate that there is probable cause to search for and seize property. Generally, there's probable cause to search when there's a fair probability that contraband or evidence of a crime will be found in the place that the police want to search. The agents need to give the magistrate this information under oath or affirmation, that is, they need to swear that the information is true. Typically, they give the magistrate an affidavit - a written statement given under oath. However, a search warrant may be given when the agents give the magistrate this information orally
  • Identify for the magistrate the particular and specific person or property to be searched and any person or property to be seized. This is called the particularity requirement. Generally, the street address of your house or the apartment number will be used; or a detailed description of you will be used if the warrant is for your body. It must also state that the warrant will be executed within 10 days and that it will be executed during the "daytime" - which generally is from 6 A.M. to 10 P.M. - unless the magistrate authorizes a different time

If the magistrate is convinced that the agents will find evidence of crime in the place they want to search, he'll issue a warrant. Although there some exceptions, the agents are allowed to search only the area or place specified in the warrant and they can seize only the items specified in the warrant. And, they can only search in a place where the specified items are likely to be found. For example, if the warrant authorizes a search of your backyard, the agents generally can't enter and search your home. Similarly, if the warrant is for a stolen car, they can't look in your desk or dresser drawers.

When Do They Need One?

The main thrust of the Fourth Amendment is to protect your privacy. It does that by prohibiting law enforcement or government agents from making "unreasonable" searches and seizures. In the terms of the Fourth Amendment, then, any search or seizure made without a warrant is unreasonable. So, the general rule is pretty straight forward: Law enforcement or government agents must get a warrant before any search or seizure may take place. This is commonly known as the Fourth Amendment's "warrant requirement."

And if they don't get a warrant or violate the terms of a warrant? The penalty for violating the Fourth Amendment by making an unreasonable or unlawful search or seizure can be severe. Under the "exclusionary rule " and the "fruit of the poisonous tree " doctrine, any evidence that's obtained through an illegal search or seizure can't be used against you in court.

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Tagged as: Criminal Law, search warrant, criminal lawyer