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This section describes search warrants and explains when
they are and are not necessary.
What is a search warrant?
A search warrant is an order signed by
a judge which authorizes police officers to search for
specific objects or materials at a definite location at a
specified time. For example, a warrant may authorize the
search of "the premises at 11359 Happy Glade Avenue
between the hours of 8 A.M. to 6 P.M.," and direct the
police to search for and seize "cash, betting slips,
record books and every other means used in connection with
placing bets on horses."
How do police officers obtain
search warrants?
Police officers obtain warrants by
providing a judge or magistrate with information that the
officers have gathered. Usually, the police provide the
information in the form of written statements under oath,
called "affidavits," which report either their own
observations or those of private citizens or police
undercover informants. In many areas, a judicial officer is
available 24 hours a day to issue warrants. If the
magistrate believes that an affidavit establishes
"probable cause" to conduct a search, he or she
will issue a warrant. The suspect, who may be connected with
the place to be searched, is not present when the warrant
issues and therefore cannot contest the issue of probable
cause before the magistrate signs the warrant. However, the
suspect can later challenge the validity of the warrant with
a pretrial motion. (See Chapter 19.) A sample affidavit for
search warrant and search warrant are in the back of that
chapter.
How much information do police
officers need to establish that "probable cause"
for a search warrant exists?
The Fourth Amendment doesn't define
"probable cause." Its meaning remains fuzzy. What
is clear is that after 200 years of court interpretations,
the affidavits submitted by police officers to judges have
to identify objectively suspicious activities rather than
simply recite the officer's subjective beliefs. The
affidavits also have to establish more than a
"suspicion" that criminal activity is afoot, but
do not have to show "proof beyond a reasonable
doubt."
The information in the affidavit
need not be in a form that would make it admissible at
trial. (For example, a judge or magistrate may consider
hearsay that seems reliable.) However, the circumstances set
forth in an affidavit as a whole should demonstrate the
reliability of the information. (Illinois v. Gates,
U.S. Sup. Ct. 1983.) In general, when deciding whether to
issue a search warrant, a judicial officer will likely
consider information in an affidavit reliable if it comes
from any of these sources:
- a confidential police informant
whose past reliability has been established or who has
firsthand knowledge of illegal goings-on
- an informant who implicates
herself as well as the suspect
- an informant whose information
appears to be correct after at least partial
verification by the police
- a victim of a crime related to
the search
- a witness to the crime related
to the search or
- another police officer.
Case Example 1:
Hoping
to obtain a warrant to search Olive Martini's backyard,
a police officer submits an affidavit to a magistrate.
The affidavit states that "the undersigned is
informed that Olive operates an illegal still in her
backyard."
Question:
Should the
magistrate issue a search warrant?
Answer:
No. The
affidavit is too vague, and does not identify the source
of the information so that the magistrate can properly
judge its reliability. "Probable cause"
therefore does not exist.
Case Example 2: Same case. The affidavit states
that "I am a social acquaintance of Olive Martini.
On three occasions in the past two weeks, I have
attended parties at Martini's house. On each occasion, I
have personally observed Martini serving alcohol from a
still in Martini's backyard. I have personally tasted
the drink and know it to be alcoholic with an
impertinent aftertaste. I had no connection to the
police when I attended these parties."
Question:
Should the
magistrate issue a warrant authorizing the police to
search Martini's backyard?
Answer: Yes. The
affidavit provides detailed, firsthand information from
an ordinary witness (without police connections) that
indicates criminal activity. The affidavit is reliable
enough to establish probable cause for issuance of a
warrant.
What if a police officer makes
a search under a warrant that shouldn't have been issued in
the first place?
In most situations the search will be
valid. In U.S. v. Leon (1984), the U.S. Supreme
Court ruled that if the police conduct a search in
good-faith reliance on the warrant, the search is valid and
the evidence admissible even if the warrant was in fact
invalid through no fault of the police. The Court's
reasoning is that:
- it makes no sense to condemn the
results of a search when police officers have done
everything reasonable to comply with Fourth Amendment
requirements, and
- the purpose of the rule
excluding the results of an invalid search as evidence
is to curb the police, not a judge, and that if a judge
makes a mistake, this should not, therefore, be grounds
to exclude evidence.
For example, assume that a judge
decides that an affidavit submitted by a police officer
establishes probable cause for the issuance of a warrant.
Even if a reviewing court later disagrees and decides that
the warrant shouldn't have been issued in the first place,
the officer's search in good-faith reliance on the validity
of the warrant will be considered valid, and whatever the
search turns up will be admissible in evidence. If, however,
the warrant is issued on the basis of statements in the
affidavit that the police knew to be untrue or which were
recklessly made without proper regard for their truth, the
evidence from a search based on the warrant may later be
excluded upon the proper motion being made by the defendant.
Case Example 1:
Officer
Furlong searches a residence for evidence of illegal
bookmaking pursuant to a search warrant. The officer
obtained the warrant by submitting to a magistrate an
affidavit containing statements known by the officer to be
false.
Question:
Is the search
valid because it was conducted pursuant to a warrant?
Answer:
No. By submitting
a false affidavit, Officer Furlong did not act "in
good faith." The search was thus improper, and
whatever it turned up is inadmissible in evidence.
Case Example 2: Officer Cal Ebrate stops a motorist
for a traffic violation. A computer check of the driver's
license reveals the existence of an arrest warrant for the
driver. Officer Ebrate places the driver under arrest,
searches the car and finds illegal drugs. It later turns
out that the computer record was wrong, and that an arrest
warrant did not in fact exist.
Question:
Are the illegal
drugs admissible in evidence against the driver?
Answer: Yes. The officer
acted in good-faith reliance on the computer record. The
seizure was therefore valid even though the record was
wrong. (Arizona v. Evans, U.S. Sup. Ct. 1995.)
If the police have a warrant
to search my backyard for marijuana plants, can they legally
search the inside of my house as well?
No. The police can only search the
place described in a warrant, and usually can only seize
whatever property the warrant describes. The police cannot
search a house if the warrant specifies the backyard, nor
can they search for weapons if the warrant specifies
marijuana plants. However, this does not mean that police
officers can only seize items listed in the warrant. Should
police officers come across contraband or evidence of a
crime that is not listed in the warrant in the course of
searching for stuff that is listed, they can lawfully seize
the unlisted items.
| "Well,
Look What We Have Here" |
| The
rule that police officers can seize items
not listed in a search warrant in the
course of searching for the stuff that is
listed creates obvious disincentives for
police to list all the items they hope to
find. For example, perhaps a police
officer suspects that a defendant carries
a weapon, but can't establish probable
cause to search for it. No problem. The
officer can obtain a search warrant for
other items, and then seize a weapon if
the officer comes upon it in the course of
the search. The defendant's only hope of
invalidating the seizure of the weapon
would be to convince a judge that the
officer did not just happen to come across
the weapon, but in fact searched for it. |
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The police had a warrant to
search a friend I was visiting, and they searched me as
well. Is this legal?
No. Normally, the police can only
search the person named in a warrant. Without probable
cause, a police officer cannot search other persons who
happen to be present at the scene of a search. However, if
an officer has reason to suspect that an onlooker is also
engaged in criminal activity, the officer might be able to
"frisk" the onlooker for weapons. (See Section VI,
below.)
If a police officer knocks on
my door and asks to enter my dwelling, do I have to allow
the officer in without first seeing a warrant?
Technically, no. A person can demand
to see a warrant, and unless the officer has one can refuse
the officer entry. However, people sometimes run into
trouble when they "stand on their rights" and
demand to see a warrant. A warrant is not always legally
necessary, and a police officer may have information of
which a person is unaware that allows the officer to conduct
a warrantless search or make a warrantless arrest. People
are right to ask to see a warrant. But if an officer
announces an intention to go ahead without one, a person
should not risk injury or a separate charge of
"interfering with a police officer." A person
should stand aside, let the officer proceed and allow a
court to decide later whether the officer's actions were
proper. At the same time, the person should make it clear
that he or she does not consent to the search. If the police
are not in a frenzied hurry, an individual might ask the
police officer to sign a piece of paper acknowledging that
"this search is conducted without the consent of
…." Otherwise, an individual might yell, "I do
not consent to this search!" loud enough for others
(potential witnesses if the matter comes before a judge) to
overhear. (For more on consent searches, see Section III,
below.)
| "Knock
and Notice" Laws |
| Statutes
in some states require police officers
searching pursuant to warrants to knock on
suspects' doors and announce that they are
police officers before breaking into a
residence. However, such statutes are not
constitutionally required; states need not
require "knock and notice" in
every instance. On the other hand, state
laws may not authorize no-knock entries
for a broad category of searches, such as
searches involving drugs. (Richards v.
Wisconsin, U.S. Sup. Ct. 1997; Wilson
v. Arkansas, U.S. Sup. Ct. |
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