A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, a search warrant cannot be issued in aid of civil process.
Jurisdictions that respect the rule of law and a right to privacy constrain police powers, and typically require search warrants or an equivalent procedure for searches police conducted in the course of a criminal investigation. The laws usually make an exception for hot pursuit: a police officer following a criminal who has fled the scene of a crime has the right to enter a property where the criminal has sought shelter. The necessity for a search warrant and its abilities vary from country to country. In certain authoritarian nations, police officers may be allowed to search individuals and property without having to obtain court permission or provide justification for their actions.
United Kingdom
In England and Wales, a local magistrate issues search warrants, which require that a constable provide evidence that supports the warrant application.
Under Section 18(5)a of Police and Criminal Evidence Act 1984, a constable can conduct a search immediately without an inspector's authorisation. This subsection allows a constable to search the home of a suspect(s) under arrest in their presence before they take the suspect to a police station (or other custody location). Under Section 32 of Police and Criminal Evidence Act 1984, a constable who arrests a person who is on their own property or has just left their premises, may immediately search both the suspect and the immediate area.
In Scotland, a country operating on the distinct legal system of Scots law compared to England and Wales – the restrictions governing the use and execution of search warrants are set out under Part XIII under the Criminal Procedure (Scotland) Act 1995. Search warrants must be signed by a Sheriff after a petition from police.[1]
Gas company officials may enter a home to inspect, repair, or replace gas meters by obtaining a warrant.[2]
Canada
To get a warrant, police must present a judge with an ITO (information to obtain) form that contains reasonable and probable grounds to believe an offence has been or is being committed and that the authorization sought will afford evidence of that offence. This hearing is ex parte, meaning only the crown is present. This fact obliges the police to include any known facts that hurt their application.[3][4]
After a search the occupants have a copy of the warrant and may get hold of the ITO through crown disclosure[5] if the occupant(s) are charged. There are numerous different warrant procedures in the Criminal Code, some have specific requirements such as being served during daytime or having a named supervising officer present in the case of a home search.[6] If these (see link)[7] requirements are not met by the police the evidence found may become inadmissible against the accused at trial.
India
Under section 93 of IPC, a search warrant can be issued by a court if: (1) (a) Where any Court has reason to believe that a person to whom a summons order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.[8]
United States
Request for a search warrant dated December 11, 1905
Under the Fourth Amendment to the United States Constitution, most police searches require a search warrant based on probable cause.[9] The absence of valid consent or an exception to the warrant requirement (whether for purposes of effecting a search or an arrest) normally requires a warrant for police entry in an individual's home.[9] The probable cause standard for obtaining a search warrant is lower than the quantum of proof required for a later criminal conviction, which requires proof beyond a reasonable doubt.[10]
Under the Fourth Amendment, search warrants must be reasonable and particular.[9][11] This means that a search warrant must reasonably identify the items to be searched for and the place where law enforcement officials are authorized to search for those items. Unless an exception to the warrant requirement applies, the search of other buildings or areas of a building, persons or vehicles, or the search for additional items that do not reasonably fall under the original warrant, will normally require additional search warrants.
To obtain a search warrant, an officer must prove to a magistrate or judge that probable cause exists for the proposed search, based upon direct information (i.e., the officer's personal observation) or other reliable information. An application for a search warrant will often rely upon hearsay information, such as information obtained from a confidential informant, as long as probable cause exists based on the totality of the circumstances. Police can seize both property and persons under a search warrant. The rationale is that evidence police collect without a search warrant may not be sufficient to convict, but may be sufficient to suggest that a warrant would allow police to find enough evidence to convict.
The issue of federal warrants is determined under Title 18 of the United States Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure.[12] Federal search warrants may be prepared on Form AO 93, Search and Seizure Warrant.[13] Although the laws are broadly similar, each state has its own laws and rules of procedure governing the issuance of warrants.
Search warrants are normally available to the public. On the other hand, they may be sealed if they contain sensitive information.[14]
Certain searches do not require a search warrant. For example,
Consent: a warrant is not required when a person in control of the object or property gives consent for the search.
Hot pursuit of a felon (to prevent a felon's escape or ability to harm others);
Imminent destruction of evidence: where evidence might be destroyed before a warrant can be properly obtained;
Emergency searches: such as when someone is heard screaming, yelling, or calling for help inside a dwelling; or
Search incident to arrest (to mitigate the risk of harm to the arresting officers specifically).[15]
Public safety: a warrantless search may be permissible in an emergency situation where the public is in danger.
Plain view: evidence is in the plain view of law enforcement officers, from a lawful vantage point (with similar exceptions that include plain smell, where the officer detects an odor that clearly indicates the presence of contraband or criminal activity).
In a plain view case, the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately obvious that the evidence is contraband. The plain view rule applies, for example, when the officer has pulled the suspect over for a seat belt violation and sees a syringe on the passenger seat.[16]
Protective sweep
If the subject is arrested in a home or vehicle, police may perform a protective search to make sure that there are no weapons within the vicinity.[17] For example, they may search for weapons in the room where they arrested the subject of a warrant, and conduct a "protective sweep" of the premises if they reasonably suspect that other individuals may be hiding.
Rental properties and hotel rooms
With rented property, a landlord may refuse to allow law enforcement to search a tenant's apartment without a search warrant, and police must obtain a warrant under the same guidelines as if the tenant were the owner of the property.[18]
People who are occupying rooms at hotels or motels have a reasonable expectation of privacy in their rooms. However, a warrantless search may be possible if the hotel guest has property in their room a considerable period of time after the scheduled check-out time.[19]
Motor vehicle exception
As first established by Carroll v. United States (1925), police are allowed to search a vehicle without a search warrant when they have probable cause to believe that evidence or contraband is located in a vehicle.[20][21] When police arrest an individual shortly after the individual has exited a vehicle, the police may conduct a full search of the suspect's person, any area within that person's immediate reach, and the passenger compartment of the recently occupied vehicle for weapons or any other contraband. However, Arizona v. Gant (2009) limits such searches to circumstances where the arrested person could have accessed the vehicle, or when the vehicle could contain evidence of the crime the person is arrested for.[22] As per Collins v. Virginia (2018), the exception does not apply when the vehicle is within the home or curtilage of the home of its owner.
This doctrine is not actually an exception to the Fourth Amendment, but rather to the Amendment's requirement for a warrant or probable cause. Balanced against the sovereign's interests at the border are the Fourth Amendment rights of entrants. Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border. This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures".
Delayed notice
A sneak and peek search warrant (officially called a delayed notice warrant and also a covert entry search warrant or a surreptitious entry search warrant) is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner's or the occupant's permission or knowledge and to clandestinely search the premises.
Gag orders
In California, the California Electronic Communications Privacy Act mandates that in certain cases concerning electronic search warrants that the court issue gag orders "[...] prohibiting any party providing information from notifying any other party that information has been sought [...]".[24]
↑ Farin (29 April 2010). "Breaking and metering". BBC Watchdog. Retrieved 27 October 2012. British Gas are legally entitled to enter anyone's home if the householder hasn't paid the bill and won't let them in, but they need a warrant from a magistrate, who must be satisfied the information British Gas shows them is correct. In most cases, British Gas also must have issued a prior warning.
↑ Coletta, Christine A. (2007). "Laptop searches at the United States borders and the border search exception to the fourth amendment". Boston College Law Review. 48: 971.
↑ See the California Electronic Communications Privacy Act, Sec. 1, codified at "California Penal Code, Sec. 1546.2". California Legislative Information. California State Legislature. Retrieved 11 September 2017. ("(b)(1) When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order [....]")
Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court's 1964 decision Beck v. Ohio, is when "whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense."
Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.
Terry v. Ohio, 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Specifically, the decision held that a police officer does not violate the Fourth Amendment to the U.S. Constitution's prohibition on unreasonable searches and seizures when questioning someone even though the officer lacks probable cause to arrest the person, so long as the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. The court also ruled that the police officer may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is "armed and presently dangerous." This reasonable suspicion must be based on "specific and articulable facts," and not merely upon an officer's hunch.
In criminal procedure law of the United States, an exigent circumstance allows law enforcement to enter a structure without a search warrant, or if they have a "knock and announce" warrant, allows them to enter without knocking and waiting for the owner's permission to enter. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect's escape is imminent. Once entry is obtained, the plain view doctrine applies, allowing the seizure of any evidence or contraband discovered in the course of actions consequent upon the exigent circumstances.
In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law."
United States v. Ross, 456 U.S. 798 (1982), was a search and seizure case argued before the Supreme Court of the United States. The high court was asked to decide if a legal warrantless search of an automobile allows closed containers found in the vehicle to be searched as well. The appeals court had previously ruled that opening and searching the closed portable containers without a warrant was a violation of the Fourth Amendment, even though the warrantless vehicle search was permissible due to existing precedent.
In the United States, the plain view doctrine is an exception to the Fourth Amendment's warrant requirement that allows an officer to seize evidence and contraband that are found in plain view during a lawful observation. The doctrine is also regularly used by Transportation Security Administration (TSA) officers while screening persons and property at U.S. airports.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
United States v. Leon, 468 U.S. 897 (1984), was a United States Supreme Court case in which the Court established the "good faith" exception to the Fourth Amendment exclusionary rule.
In United States law, the Aguilar–Spinelli test was a judicial guideline set down by the U.S. Supreme Court for evaluating the validity of a search warrant or a warrantless arrest based on information provided by a confidential informant or an anonymous tip. The Supreme Court abandoned the Aguilar–Spinelli test in Illinois v. Gates, 462 U.S. 213 (1983), in favor of a rule that evaluates the reliability of the information under the "totality of the circumstances." However, Alaska, Hawaii, Massachusetts, New York, Vermont, Oregon, and Washington have retained the Aguilar–Spinelli test, based on their own state constitutions.
South Dakota v. Opperman, 428 U.S. 364 (1976), elaborated on the community caretaking doctrine. Under the Fourth Amendment, "unreasonable" searches and seizures are forbidden. In addition to their law-enforcement duties, the police must engage in what the court has termed a community caretaking role, including such duties as removing obstructions from roadways to ensure the free flow of traffic. When the police act in this role, they may inventory cars they have seized without "unreasonably" searching those cars.
Suppression of evidence is a term used in the United States legal system to describe the lawful or unlawful act of preventing evidence from being shown in a trial. This could happen for several reasons. For example, if a judge believes that the evidence in question was obtained illegally, the judge can rule that it not be shown in court. It could also refer to a prosecutor improperly or intentionally hiding evidence that does not go with their case and could suggest or prove to the judge or jury that the defendant is not guilty or that (s)he is legally obligated to show the defense. In the latter case, this would be a violation of the 5th amendment to the United States Constitution. Also Rule 3.8 of the ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigates the offense." This can result in a mistrial in the latter case and/or the dismissal of the prosecutor.
Search incident to a lawful arrest, commonly known as search incident to arrest (SITA) or the Chimel rule, is a U.S. legal principle that allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the preservation of evidence.
In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Generally speaking, searches within 100 miles of the border are more permissible without a warrant than those conducted elsewhere in the U.S. The doctrine also allows federal agents to search people at border crossings without a warrant or probable cause. The government is allowed to use scanning devices and to search personal electronics. Invasive bodily searches, however, require reasonable suspicion.
The law of search and seizure in Pennsylvania is controlled by both the United States Constitution and the broader protections of the Pennsylvania Constitution. This article is concerned only with the protections provided by the Pennsylvania Constitution.
Kentucky v. King, 563 U.S. 452 (2011), was a decision by the US Supreme Court, which held that warrantless searches conducted in police-created exigent circumstances do not violate the Fourth Amendment as long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.
Maryland v. King, 569 U.S. 435 (2013), was a decision of the United States Supreme Court which held that a cheek swab of an arrestee's DNA is comparable to fingerprinting and therefore, a legal police booking procedure that is reasonable under the Fourth Amendment.
Riley v. California, 573 U.S. 373 (2014), is a landmark United States Supreme Court case in which the court ruled that the warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment.
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