Search Warrants

A warrant is a document issued by judicial officers that authorizes law enforcement officials to make an arrest or carry out a search for evidence of crime. Warrants are an important protection against government abuse of power because, as expressed by Justice Jackson in Johnson v. United States, (1948), they require that inferences about criminal activity ‘‘be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’’ The warrant also assures the individual who is searched or seized that the officer has authority to do so and makes clear the limits of that authority.

When Warrants Are Required

The most important source of law concerning warrants and their use is the Fourth Amendment to the United States Constitution, which states that ‘‘[t]he 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 second part of the Fourth Amendment clearly sets out the characteristics of a valid warrant: it must be based on information obtained from a sworn applicant that shows there is probable cause to believe a suspect or evidence of illegal activity will be found. It must also describe with particularity the place to be searched and things to be seized. What the language of the Fourth Amendment does not make clear is when such a warrant is required.

The debate over this issue has been vigorous. One stance, which could be called the ‘‘warrant presumption’’ view, was forcefully advanced by Justice Potter Stewart. In Katz v. United States, (1967), he stated that searches and seizures should be authorized by a warrant ‘‘subject only to a few specifically established and well-delineated exceptions.’’ In contrast, the ‘‘reasonableness’’ approach, advocated by Chief Justice Rehnquist, among others, is that warrants are only necessary when failing to obtain one would be unreasonable. As Rehnquist stated in Michigan v. Clifford, (1984), there are times when ‘‘the utility of requiring a magistrate to evaluate the grounds for a search . . . is so limited that the incidental protection of an individual’s privacy interests simply does not justify imposing a warrant requirement.’’ The first view emphasizes the second clause of the Fourth Amendment, whereas the second view relies more heavily on the Amendment’s reasonableness language.

The second view is probably more consistent with the history of the Fourth Amendment. The primary, if not the only, concern of those who drafted the Amendment was the ‘‘general warrant.’’ General warrants were usually issued by executive officers of the British Crown rather than judges, could be based on a ‘‘bare suspicion,’’ and rarely identified a specific place to be searched, thus allowing fishing expeditions by British agents in search of evidence of sedition or possession of uncustomed goods. As Professor Davies states, ‘‘the historical concerns were almost exclusively about the need to ban house searches under general warrant[;] the evidence indicates that the Framers understood ‘unreasonable searches and seizures’ simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants.’’ Thus, the Fourth Amendment was designed to regulate warrants when they were used, not declare warrantless searches presumptively unreasonable. Indeed, during colonial times most searches for evidence of street crime were warrantless, carried out by constables and ordinary citizens as part of a ‘‘Hue and Cry’’ against persons suspected of a felony.

Whether or not grounded in history, today’s Fourth Amendment jurisprudence recognizes a large number of situations (well over twenty) in which warrants are not required. These ‘‘exceptions to the warrant requirement’’ can be divided into four categories (for cites to the cases see the entries for Search and for Seizure). First, and most numerous, are the exceptions based on exigent circumstances that purportedly make obtaining a warrant impossible or impracticable. Among these are the ‘‘hot pursuit’’ exception (when police are chasing a felon); searches incident to arrest; the ‘‘vehicle exception’’ that allows warrantless searches of moveable vehicles such as cars and boats; the ‘‘evanescent evidence’’ exception that permits warrantless seizure of evidence that is in danger of imminent destruction; and the doctrine that police may stop and frisk suspicious individuals. A second set of exceptions rests on the assumption that the police action does not infringe a substantial privacy interest. Thus, warrantless searches are permitted when the subject voluntarily consents, when the entity being searched is a ‘‘heavily regulated industry,’’ or when the person searched is a parolee, and warrantless stops are permitted in connection with roadblocks for the purpose of detecting illegal immigrants or drunk drivers. Third, there are numerous ‘‘special needs’’ situations—a phrase coined by the U.S. Supreme Court—where a warrant requirement might frustrate legitimate purposes of government other than crime control (for example, school searches; drug testing of government workers and students; business searches). Finally, there are situations where warrants are considered unnecessary because other devices already curb police discretion (for example, inventory searches of cars or people based on written inventory policies).

As a result of these various exceptions, only about 5 percent of all searches are based on a warrant, and an even smaller proportion of seizures (arrests and stops) are authorized by warrant. Warrants are most often sought in connection with searches of homes. Under U.S. Supreme Court case law, Arrest Warrants are required to make an arrest in the home, and search warrants are required to search the home for evidence or for a suspect. However, here as elsewhere exigent circumstances permit dispensing with a warrant. Exigency exists when police are pursuing a fleeing felon, evidence of a felony is in imminent danger of being destroyed, or the police or a third party is in imminent danger. Lower courts have permitted warrantless entries when pursuit is not particularly ‘‘hot,’’ when police are responsible for creating the exigency (for instance, when the police make their presence known rather than go to seek a warrant), and even when police only have reasonable suspicion (a level of certainty below probable cause) that a suspect will escape or evidence be destroyed.

The Usefulness of Warrants

The courts’ unwillingness to impose a rigorous warrant requirement may result in part from the concern described by Chief Justice Rehnquist: a warrant requirement may undermine law enforcement efficiency yet not provide appreciable protection beyond the stipulation that searches and seizures be based on probable cause (or reasonable suspicion), a stipulation that is amply enforced through post-search exclusion of illegally seized evidence. A seven-city study of the warrant process found that police often take at least half-a-day to draft a warrant application. Yet magistrates spend, on average, less than three minutes assessing the application and deliberating on whether to issue a warrant. The process often seems to be rubber stamp in nature, with police seeking out those magistrates known to be sympathetic to law enforcement. Less than 10 percent of warrant applications are rejected.

The same research also suggested, however, that the process of justifying a search or seizure before it takes place forces police to be more careful. Many departments require that warrant applications be reviewed by a prosecutor or supervising officer. Magistrates often require police to amend their applications. In light of these facts, a 5 to 10 percent rejection rate may be reasonable. Although the warrant application process can be cumbersome, it can also be streamlined considerably through the telephonic warrant option. Under this option, the police, often with the prosecutor online, contact the judge by phone and recite the relevant facts; if probable cause is found, the magistrate signs the ‘‘original’’ warrant, and the officer is authorized to sign and serve a ‘‘duplicate original warrant.’’ Research indicates that this process inhibits judge-shopping (because judges rotate through the ‘‘duty judge’’ position), reduces the time needed to obtain authorization from an average of three or four hours to one and one-half hours, and usually produces more information than written affidavits in similar cases.

The question remains whether a warrant is necessary when police know a serious sanction (exclusion of evidence and perhaps a damages action against them) will be imposed if they violate the Fourth Amendment. Professor Stuntz has suggested two reasons for maintaining an ex ante (before-the-fact) warrant requirement despite the existence of ex post (after-the-fact) sanctions. First, police have been known to lie about the facts relevant to determining whether probable cause existed at the time of the search or seizure. Such lying is more difficult to pull off successfully if ex ante review, through a warrant, is required, because police do not yet know what they will find or how they will find it. Ex post, on the other hand, shaping the story to fit the facts is much easier. Second, judges deciding whether to exclude evidence are likely to be affected by the fact that the police found the evidence. This hindsight bias makes a neutral determination about probable cause difficult. During ex ante review, on the other hand, the judge does not know what the police will find and thus is likely to be more critical of police assertions.

The Elements of a Valid Warrant

To be valid, a warrant must meet several requirements. First, it must be issued by a ‘‘neutral and detached’’ magistrate. The Supreme Court has held that this requirement is not met when the magistrate is also a prosecutor, is paid only when a warrant is issued (but not when one is not issued), or accompanies police to the scene of a search to determine what items should be seized. On the other hand, magistrates need not be legally trained, and many are not. The Supreme Court held in Shadwick v. Tampa (1972) that court clerks may issue Arrest Warrants for violation of city ordinances.

A second requirement is that the warrant be based on probable cause. Probable cause to arrest exists when the facts and circumstances are sufficient to warrant a prudent person in believing that the person to be arrested has committed or is committing a crime, and probable cause to search exists when the same prudent person would believe that the evidence or persons to be seized are located at the place to be searched. Most courts equate probable cause with a level of certainty akin to a more-likely-than-not standard. A much-litigated issue is the extent to which the probable cause may be based on hearsay. The Supreme Court has held that an application that relies on statements by another police officer or an ordinary citizen generally should be considered credible. However, if the application is based on the assertions of a ‘‘confidential informant,’’ often a criminal himself, the magistrate must generally make further inquiry into the basis of the allegation and the credibility of the informant. This inquiry, outlined in cases such as Aguilar v. Texas, (1964), Spinelli v. United States, (1969), and Illinois v. Gates, (1983), considers whether the application makes clear that the informant personally observed the criminal activity (or at least describes the criminal activity in sufficient detail that the assertions are unlikely to be casual rumors), whether the informant has a record of reliable informing, and whether the informant makes self-incriminating disclosures (which are thought to make the informant’s other assertions more reliable). The magistrate may also consider the extent to which police have corroborated the informant’s assertions, which can include police knowledge of the suspect’s reputation. All of these factors are to be considered in the ‘‘totality of the circumstances’’ in determining whether the informant is sufficiently credible. Although police have been known to doctor warrant applications and even fabricate the existence of confidential informants, courts have rarely required police to produce informants in front of the magistrate, out of fear that a valuable law enforcement resource would thereby be compromised.

To avoid the general warrant of colonial infamy, the warrant must also describe with particularity the place to be searched and the person or thing to be seized. However, in Maryland v. Garrison (1987), the Court held that a mistake as to the description of the place to be searched would not invalidate the warrant unless the requesting officers knew or should have known about the error. It has also upheld against a particularity challenge a warrant that listed several items to be seized, but ended with the phrase, ‘‘together with other fruits, instrumentalities and evidence of crime at this [time] unknown’’ (Andresen v. Maryland, 1976).

Finally, the warrant must be executed properly. Federal and most state laws require that warrants be executed during the daytime or early evening unless there are good grounds for executing the warrant at some other time. The warrant must also be executed before it goes stale (see, for example, Sgro v. United States, 1932, finding that a delay of three weeks in executing a warrant for search of intoxicants rendered the search invalid). To avoid unnecessary panic, protect the police, and enhance dignity and privacy, police must knock and announce their presence when executing a warrant, unless there is reasonable suspicion to believe knocking and announcing would endanger them or evidence (Richards v. Wisconsin, 1995). Police may only search those areas where items in the warrant may be found, although if they see an unlisted item in ‘‘plain view’’ in such an area they may seize it; thus, police with a warrant authorizing only seizure of a rifle may not search in kitchen drawers, but if they come across drugs while looking for the rifle in a closet, they may seize them (Coolidge v. New Hampshire, 1971). Finally, federal and most state laws require police to file an inventory of the seized evidence, which is to be given to both the magistrate and the searched party. However, under the USA Patriot Act, } 213(2)(b), police are allowed to undertake ‘‘sneak and peak’’ searches that allow the police to delay notification if they believe notice will compromise an investigation.

When a Warrant Is Insufficient

There are several situations in which even a warrant that meets all the requirements just described is insufficient. Under Title III of the federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C. } 2518, which applies to state officials as well, when the government wants to conduct electronic surveillance, it generally must not only obtain a warrant based on probable cause but show that the surveillance is the only way it can obtain the evidence. When the government wants to obtain evidence located inside someone’s body (for example, a bullet), an adversarial hearing may have to be held at which the court considers the extent to which the procedure threatens the health, safety, and dignity of the individual and the extent to which prohibiting the procedure would affect the community’s interest in fairly and accurately determining guilt or innocence. Similarly, large-scale seizures of pornographic books and films constituting a prior restraint must be preceded by an adversary hearing on the question of obscenity.

CHRISTOPHER SLOBOGIN

References and Further Reading

• Davies, Thomas Y., Recovering the Original Fourth Amendment, Michigan Law Review 98 (1999): 547–750.
• Grano, Joseph D., Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, Michigan Journal of Law Reform 17 (1984): 465.
• Greenhalgh, William W., and Mark J. Yost, In Defense of the ‘‘Per Se’’ Rule: Justice Stewart’s Struggle to Preserve the Fourth Amendment’s Warrant Clause, American Criminal Law Review 31 (1994): 1013–1098.
• Stuntz, William J., Warrants and Fourth Amendment Remedies, Virginia Law Review 77 (1991): 881–943.
• Van Duizend, Richard, L. Paul Sutton, and Charlotte A. Carter. The Search Warrant Process: Preconceptions, Perceptions and Practices. Williamsburg: National Center for State Courts, 1985.

Cases and Statutes Cited

• Aguilar v. State of Texas, 378 U.S. 108 (1964)
• Andresen v. Maryland, 427 U.S. 463 (1976)
• Coolidge v. New Hampshire, 403 U.S. 443 (1971)
• Illinois v. Gates, 462 U.S. 213 (1983)
• Johnson v. United States, 333 U.S. 10 (1948)
• Katz v. United States, 389 U.S. 347 (1967)
• Maryland v. Garrison, 480 U.S. 79 (1987)
• Michigan v. Clifford, 464 U.S. 287 (1984)
• Sgro v. United States, 287 U.S. 206 (1932)
• Shadwick v. City of Tampa, 407 U.S. 345 (1972)
• Spinelli v. United States, 393 U.S. 410 (1969)
• Richards v. Wisconsin, 520 U.S. 385 (1997)

See also Aguilar v. Texas, 378 U.S. 108 (1964); Arrest Warrants; Carroll v. United States, 267 U.S. 132 (1925); Chimel v. California, 395 U.S. 752 (1969); Connally v. Georgia, 429 U.S. 245 (1977); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Exclusionary Rule; General Warrants; Illinois v. Gates, 462 U.S. 213 (1983); Jailhouse Informants; Katz v. United States, 389 U.S. 347 (1967); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); Payton v. New York, 445 U.S. 573 (1980); Search (General Definition) Seizures; Warrant Clauses (IV); Warrantless Searches