The Evolution Of Search Warrants: A Legal History

Search warrants are a court order that authorises law enforcement to search a person, location, or vehicle for evidence of a crime. In most countries, a search warrant cannot be issued in civil cases. The laws surrounding search warrants vary from country to country, but they typically require a search warrant or an equivalent procedure for criminal investigations. The history of search warrants can be traced back to the Colonial era, when British agents were given authority to enter homes and arrest or execute individuals to enforce the King's orders. This led to the Fourth Amendment of the US Constitution, which states that people have the right to be secure in their persons, houses, papers, and effects, and that no warrants shall be issued without probable cause.

The Fourth Amendment

The text of the amendment states:

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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 Supreme Court has carved out a series of exceptions to the warrant requirement, including consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

Search warrant requirements

Search warrants have a long history, dating back to the British rule of the American colonies. During this period, British agents were given lifelong writs (authoritative court documents) to search colonial properties for contraband.

Today, a search warrant is a court order issued by a judge or magistrate that authorises 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. Here are the key requirements for search warrants:

Probable Cause

The officer must provide reasonable information to support the possibility that evidence of illegality will be found. This information may come from the officer's personal observations or those of an informant. The warrant must accurately describe what will be searched; otherwise, the search is unlawful.

Particularity

The warrant should describe the place to be searched and the items to be seized with specificity. It must reasonably identify the items to be searched for and the place where law enforcement is authorised to search.

Signed by a Neutral and Detached Magistrate or Judge

The warrant must be signed by a "neutral and detached" magistrate or judge. This means that the official must be impartial and not involved in the investigation or prosecution of the case.

Execution by Government Officers

The warrant should be executed by government officers, such as police officers or government officials. Private citizens cannot execute a search warrant.

Timing

Search warrants are typically executed during daytime hours, usually between 6:00 a.m. and 10:00 p.m. under federal law. Unreasonable delays in executing the warrant may cause the probable cause to disappear.

Knock-and-Announce Rule

When searching a place, an officer must knock and announce their authority and purpose before entering. They should wait a reasonable time or be refused admittance before using force to enter. However, if there is a reasonable fear or suspicion that evidence will be destroyed or the investigation will be inhibited, the waiting time may be reduced or waived.

Scope of Search

Officers must stay within the scope of the warrant during the search. They cannot search places or individuals not listed on the warrant. Any evidence found outside the scope of the warrant may be suppressed.

Return and Receipt

After executing a search warrant, officers typically must return a copy of the warrant to the judge and provide a receipt for any seized property. This return copy includes information about the search and a list of items seized.

These requirements help protect individuals' rights and ensure that searches are conducted lawfully and reasonably.

Exceptions to warrants

The Fourth Amendment of the US Constitution protects people from unlawful government searches and seizures. It states 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".

However, there are several exceptions to the warrant requirement:

Plain View

If an item is in plain view and is clearly illegal, it can be seized without a warrant. This applies to items in public view, as well as those seen by an officer who is lawfully on private premises or has stopped a vehicle for a lawful purpose.

Exigent Circumstances

Officers can take immediate action without a warrant if they believe that failing to do so will result in the destruction of evidence, a threat to public safety, or a suspect's escape.

Hot Pursuit

Officers can enter any property without a warrant to search for and seize a felony suspect who is in pursuit.

Emergency Situations

Officers can act without a warrant to avoid the destruction of evidence, protect officers or the public, or prevent suspects from fleeing.

Automobiles

If an officer has probable cause to believe that a vehicle contains evidence of a crime or contraband, they can search the vehicle without a warrant. This includes the trunk, luggage, and other containers that may reasonably contain evidence.

Consent

A third party with possessory rights to the property may consent to a search if consent is given voluntarily and without coercion or threats.

Administrative Search

Some administrative searches do not require warrants, such as vehicle checkpoints and roadblocks, factory or inventory searches, detention of a traveler, and cause-of-fire searches.

Stop and Frisk

Officers can stop and frisk someone if they have a reasonable suspicion that the person may have committed or is about to commit a crime and may be armed.

Search Incident to Arrest

Officers can search the person, their clothes, belongings, and vehicle of someone who has been lawfully arrested, without a warrant.

Special types of warrants

Search warrants are a type of court order that authorises law enforcement officers to search a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. While the specifics vary from country to country, most nations require a search warrant for criminal investigations, except in certain circumstances.

Anticipatory Warrants

When a police officer is issued a search warrant for contraband or evidence, they are not required to believe that contraband is in a certain place to be searched. Once probable cause is established, and a future triggering condition is met, the warrant becomes valid.

Third-Party Premises Warrants

Police officers can search the premises of a person who is not suspected of a crime.

Electronically Stored Information Warrants

In the United States, Rule 41(e)(2)(A) of the Federal Rules of Criminal Procedure authorises police officers to search "electronic storage media" or "copying of electronically stored information" with a search warrant. Officers can copy seized material for later review.

Extradition Warrants

Also known as a Governor's Warrant, this type of warrant is issued for the arrest of an accused fugitive who has committed a crime in one state and then left that state. The suspect is usually extradited back to the state where the crime was committed to face justice proceedings.

Alias Warrants

An alias warrant is issued when a person fails to appear in court for a scheduled date or fails to respond to a citation in person or by mail. It is usually issued when an individual violates their promise to appear in court for a matter.

Bench Warrants

A bench warrant is a court order instructing law enforcement to detain an individual and hold them in custody until they can be brought before a judge. This type of warrant is often issued when a person fails to appear for a required court appearance or commits a probation violation.

Fugitive Warrants

A fugitive warrant is sent from one jurisdiction to another when a suspect is believed to be within the local jurisdiction.

Capias Warrants

A Capias Warrant is issued when a person fails to comply with court orders or pay a fine within the required time frame.

Post-search procedural safeguards

Search warrants have been a part of US law since the Fourth Amendment to the US Constitution was adopted in 1791. The Fourth Amendment states that people have the right to be secure in their persons, houses, papers, and effects, and that no warrant shall be issued without probable cause.

Once a search has been conducted, there are several procedural safeguards that must be followed. Here are some key components of post-search procedural safeguards:

• Return of the warrant: Officers are typically required to return a copy of the executed search warrant to the issuing judge or magistrate. This copy should include detailed information about the search, such as a list of items seized and any relevant observations made during the search.
• Receipt for seized property: In most jurisdictions, officers are obligated to provide a receipt for any property that was seized during the search. This ensures transparency and helps to protect the rights of the individuals whose property was taken.
• Inventory of seized items: Officers are generally required to create an inventory of all items seized during the search. This inventory should be thorough and accurately describe each item taken into custody.
• Return of non-evidentiary items: In some cases, officers may seize items that are not directly related to the investigation or evidence of a crime. In such cases, officers should return these items to the owners as soon as possible after the search.
• Notification of occupants: Officers are usually required to notify the occupants of the premises about the search and provide them with a copy of the warrant. This helps to ensure transparency and allows occupants to understand the reasons for the search and what items have been seized.
• Securing the premises: If officers have damaged or altered any part of the premises during the search, they are responsible for securing and restoring the property to its original state as much as possible. This may include boarding up a broken window or locking a door that was forced open.
• Time constraints: Search warrants typically have a time limit within which they must be executed. For example, federal law requires that search warrants be executed within ten days of being issued.
• Judicial review: The entire search warrant process, including the application, issuance, and execution of the warrant, is subject to judicial review. This helps to ensure that the rights of individuals are protected and that law enforcement officers are acting within the scope of their authority.

Frequently asked questions