Executing Search Warrants and the Fourth Amendment

Overview of the Fourth Amendment

The requirement for a search warrant in the United States stems from 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 rule, and under certain specific circumstances, officers are allowed to execute a search without a warrant. These exceptions include: during a hot pursuit if a felon or subject is taking shelter somewhere; if there is an imminent threat to persons' lives or property, or if evidence is in danger of being destroyed; or a search incident to arrest, where an officer making an arrest reasonably believes it necessary to search the immediate surroundings in order to establish a level of safety (Amar, 1994). Officers also do not need a search warrant to search a vehicle or property involved in a crime if they can demonstrate probable cause. An officer of the law may not execute a search without a warrant unless one of these previous conditions is met.

The execution of a search warrant functions like any other formal law enforcement procedure. 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 authority must be presented with evidence that probable cause exists for a search — in other words, they must be convinced that there is sufficient reason to issue the warrant, whether it involves the safety of others or a connection 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 issued warrant. Evidence in plain view of an officer, or contraband observed from a legitimate vantage point, can also be seized without a warrant, though this is relatively rare, since most criminals attempt to conceal evidence or contraband associated with their activities.

Debate Over Search and Seizure

The Fourth Amendment is one of the most hotly contested amendments in court. Often when a defendant has no other legal recourse, they will argue that their rights were violated in the course of a search. Officers are not permitted to search in locations deemed improbable for storing contraband, or in areas unrelated to the original warrant. The amendment also limits the activities of bounty hunters and other agents of justice, and is widely regarded as one of the most significant civil rights protections in the history of the United States.

Landlords may refuse officers the right to search a tenant's property without a warrant, just as parents may refuse the same right when officers wish to conduct an unwarranted search of a minor's property — without legal consequence to the landlord or parent. The search warrant itself is a powerful tool that can be seen as a double-edged sword. Without it, the protections afforded by the Fourth Amendment shield citizens from authoritarian searches. Yet the warrant itself allows officers to enter a home or property and search wherever probable cause applies. 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, be 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 is composed of two clauses joined by the conjunction "and," which function in distinct ways. The first clause prevents unreasonable searches and seizures. The second 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 — implying that the search clause and the warrant clause were not intended to operate as a pair (Kaplan, 1961). This interpretation has fueled legal debate and produced cases that reached the Supreme Court for review. One of the most famous involved this very disagreement between Justice Minton and Justice Frankfurter. Minton argued that the "reasonable cause" clause should be read independently of the "warrant" clause, implying that a search warrant was only one possible means of justifying a search or seizure — not a categorical requirement. Justice Frankfurter countered that the amendment was always intended for both clauses to be interpreted together, and that in order to conduct a search that would otherwise be deemed unreasonable, a law enforcement official must first obtain a warrant from a judge or magistrate, except in the enumerated exceptional circumstances (Kaplan, 1961).

Works Cited

Amar, Akhil Reed. "Fourth Amendment First Principles." Harvard Law Review, Vol. 107, No. 4 (Feb. 1994), pp. 757–819.

Goldsmith, Michael. "The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance." The Journal of Criminal Law and Criminology, Vol. 74, No. 1 (Spring 1983), pp. 1–171.

Kaplan, John. "Search and Seizure: A No-Man's Land in the Criminal Law." California Law Review, Vol. 49, No. 3 (Aug. 1961), pp. 474–503.

Kipperman, Steven M. "Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence." Harvard Law Review, Vol. 84, No. 4 (Feb. 1971), pp. 825–833.

Kitch, Edmund W. "Katz v. United States: The Limits of the Fourth Amendment." The Supreme Court Review, Vol. 1968 (1968), pp. 133–152.

United States Constitution. "Fourth Amendment."