Executing search warrants: procedures and legal considerations

Executing Search Warrants

Overview of the Fourth Amendment

The need for a search warrant in the United States came after the Fourth Amendment to the Constitution, which requires law enforcement officials to obtain a search warrant before they can legally search a person's property or home. There are a few exceptions to this law, and under certain, specific circumstances, officers are allowed to execute a search without a warrant. These exceptions include during a hot pursuit if the felon or subject is taking shelter somewhere, if there is imminent threat to person's lives or property or if evidence is threatened, or a search that is incident to arrest where an officer is making an arrest and feels as though they need to search the immediate surroundings to establish a certain level of safety (Amar, 1994). Officers also do not need a search warrant to search a vehicle or home that is involved in a crime if they feel that probable cause can be proven to search the property. An officer of the law execute a search without a warrant or unless the previous conditions are met.

The execution of a search warrant is like any other function of law enforcement. A court magistrate or judge may issue a search warrant for an officer to execute (Amar, 1994). In order to obtain a warrant, the issuing body must be presented evidence that there is probable cause for a search; in other words, they must be convinced that there is a reason to issue the warrant that may involve the safety of others or be connected to criminal activity (Amar, 1994). The officer who executes the search may be required to provide the person being searched with a copy of the warrant issued. Evidence in plain view of an officer, or contraband that is observed by an officer from a legitimate vantage point can be seized without a warrant as well, but this is a relatively rare occurrence since most criminals try to hide evidence or contraband associated with their criminal activity.

Debate Over Search and Seizure

The Fourth Amendment is one of the most hotly contested amendments in court. Often when a criminal has no other legal recourse, they will argue that their rights were violated in the act of searching. Officers are not allowed to search in places that are deemed as improbable places for a person to keep contraband, or that may be unrelated to the original warrant that was issued for the search. It also limits the activities of bounty hunters and other agents of justice, and falls into the category of one of the most important civil rights triumphs of all time in the United States.

Landlords can refuse the right for officers to search a tenant's property without a search warrant. Just as parents can refuse the same right to officers without risking legal ramifications if the officers want to execute an unwarranted search of a minor's property. The search warrant itself is a very powerful tool that can be viewed by some as a double-edged sword. Without it, the protection afforded under the Fourth Amendment helps keep citizens protected from authoritarian searches. But the warrant itself allows officers to break into a home or property and search wherever they have probable cause. The Fourth 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, bet supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (United States Constitution)

The Fourth Amendment itself is made up of two clauses that are joined by the conjunction "and," which function in two ways. First, the amendment prevents unreasonable searches and seizures. The second clause prescribes the requirement for a search warrant before a search can be executed. Some prosecutors have argued that these two clauses should be read separately. This argument implies that the search clause and the warrant clause were not meant to be considered as a pair (Kaplan, 1961). This has fueled debate as well as court cases that have made it all the way to the Supreme Court for review. One of the most famous cases consisted of this very debate between two judges, Justice Minton and Justice Frankfurter. Minton argued that the "reasonable cause" clause should be read separately and considered exclusively from the "warrant" clause. This implied that the search warrant was only one possible outcome of the desire to search or seize property, and not a requirement for the search or seizure itself. Justice Frankfurter argued that the amendment itself intended for both clauses to be interpreted in conjunction with each other, and that in order to execute a search where an unreasonable search or seizure would have otherwise prevented itself, the law enforcement official has to first obtain a search warrant from a judge or court magistrate before a search or seizure can occur outside of the bounds of the exceptions listed previously (Kaplan, 1961).

Landmark Court Cases

Search warrants have both the power to put a criminal away for the rest of their life as well as create a mistrial, depending on how they're executed. If a search warrant is not obtained, or if the warrant is executed without proper regard for the law, critical evidence gained through unlawful search and/or seizure may be thrown out in court. There are two very prominent cases that are excellent examples of this ability to make or break a case at the Supreme Court level. The two cases are Weeks v. United States and Mapp v. Ohio (Kipperman, 1971). In the latter case, officers arrested a woman for possession of lewd material when they had originally entered her house to try and find a bombing suspect that they suspected she was harboring. Because the trunk of lascivious material was found during a search warrant that was executed to find a man on the run, and not to find a trunk full of pornographic material, the evidence collected was thrown out as inadmissible in court (Kipperman, 1971). This was a landmark finding because it held up citizens' rights relative the Fourth Amendment.

In Weeks v. United States, the Supreme Court threw out evidence of Mr. Week's federal crimes due to the fact that officers went looking in his how twice without a search warrant, and that Mr. Weeks was being searched for his involvement in a different crime all together. This was the first time the Fourth Amendment had been tested at the Federal level, and it represented one of the biggest landmark cases in the nation's history (Kipperman, 1971). Both cases, while rather old, illustrate the power of the Fourth Amendment to support and protect citizens' search and seizure rights. The case took place in the early 20th century, and set a precedent for other cases to come.