What Is a Search Warrant?
Simply stated, a search warrant is a “legal document authorizing a police officer to enter and search a premises.” The places that can be searched are not limited to buildings or real property. They can also include vehicles, a person’s body, or even their blood.
Search Warrants Aren’t Always Necessary For a Search To Take Place
When a person suspected of having committed a crime is stopped, questioned, detained, and/or arrested, the police have the legal right to search that person. This is called a search “incident to arrest.” The reasoning behind affording them this ability is officer safety.
You have seen this before. On t.v. when someone is arrested the cop will frisk and pat them down to check for weapons (and other things). If they are patting someone down and they have a right to be doing so, then anything else they find on that person can be used against them because in theory they were just checking for their safety. They might find things like guns, drugs, tools used for stealing, etc. If so it is very likely at this point that this stuff will be used against them in the criminal prosecution to follow.
By way of another example consider the following: when a person gets pulled over and arrested for a DUI the police have the right to search the immediate passenger compartment of that car. Same reason; officer safety. While it may seem counter-intuitive that if the person is already sitting in the back of the cop car and therefore poses no threat to the officer, the reason is that they have a right to do so is because there could have been something in there that could have hurt them or been used to hurt them. Furthermore, if they see something “illegal” in plain sight (usually drugs, scales, drug paraphernalia, contraband, open beer cans, etc.) then it is very likely that they will have the right to take that and use it to further build a case against the person that just got arrested.
When Is A Warrant Required?
When the police are investigating a crime many times they feel it becomes necessary for them to investigate further into a person’s property, house, car, body, phone records, etc. than is allowable simply by virtue of arresting a person and the search abilities they have that come with that arrest as described above.
Let’s re-look at the DUI example above. In most cases when a person is arrested for a DUI it does not give the cops the right to search the whole car. For example, they can’t search the trunk. If the glove box is locked that is off limits as well. Same with a locked center console. The theory here is that if a person was going to use something to harm an officer it is not as readily accessible to that person if it is locked in a compartment in the car, as a weapon or something else might be if it was laying out in the open. Basically if the search goes beyond what is in plain sight or for something that could have been easily used to harm the officer it is off limits.
If after a preliminary investigation of a crime, or after the arrest of a person, the police think they need to search further to help uncover more evidence of crime, that is when a search warrants become necessary.
How Do The Police Get A Warrant?
In order to get a search warrant the police must convince a judge that they have what is called “probable cause” to believe that they will find evidence of criminal activity in the place that is to be searched. The police do this by written or oral affidavit to the judge. These affidavits must be made under oath, and must be very specific about what, where, and why they want to search.
This search can be for anywhere. In motor vehicle crime cases, for example, the police will often want to get a warrant to search the driver’s blood to see if they were drunk or otherwise impaired. This happens all the time.
How Do You Fight A Warrant?
The key to this whole thing, and where I come in as a criminal defense attorney, is to make sure that the searches incident to arrest, the searches done with warrants, and all the other evidence in case is obtained legally. The warrants have to be reasonable and specific. They have to be detailed and state exactly what they want to search for and why.
While this example may seem seem obvious it touches upon my point directly. If a police officer gets a warrant to search a person’s house for a stolen pair of skis, then they have no business searching a small safe (that might hold drugs for example) that could in no way hold skis. If they do look in the safe then it is my job to get anything they find in it tossed out of the case. These are our constitutional rights we are talking about protecting here.
This article was not meant to be an in-depth, legal analysis of searches, seizures, and warrants. Not by any means. Rather just a basic explanation of a legal concept that comes up often in my cases.
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Stryder J. Wegener is the author of this article, the co-founder of Emerald City Law Group, and a damn good criminal defense attorney.