The Fourth Amendment to the United States Constitution protects Americans from unreasonable searches by the government.  That means that absent an emergency situation or other legal exception, a police officer must have a search warrant before conducting a search of your person or property.

How a Search Warrant is Obtained

The Fourth Amendment requires that searches be specific and reasonable.  That means that a judge will only approve a search warrant if law enforcement is specific as to the items and location it wishes to search.  Law enforcement must also prove that probable cause exists that a specific item is located in a specific place.

Whether the warrant gets issued or not is up to the judge's review.  If a judge finds that law enforcement has met its burden of probable cause and has included enough specificity in the request for the warrant, then the judge will issue the search warrant.  The suspect is not present during this proceeding and is not given an opportunity to present his or her argument against the issuance of a warrant.  However, in later proceedings the suspect may argue that a search warrant was improperly granted.

When a Search Warrant is Not Necessary

There are a few situations when law enforcement is exempt from obtaining a search warrant.  Those situations include:

Consent: Law enforcement can request to enter a person’s home or search a person’s belongings.  If the person consents to the search and gives law enforcement express permission to conduct the search then a warrant is unnecessary.

Plain View Doctrine:  Law enforcement does not need a search warrant to obtain evidence that is in plain sight.  For example, if an officer is walking down the street and sees a person with drugs in the park then the officer may arrest that person and keep the drugs as evidence even though a search warrant was not obtained.   This exception exists because individuals do not have a reasonable expectation of privacy when they are in plain view.

Emergency Situation: If the police are in hot pursuit of a felon and follow that alleged felon into a home or other private area then they do not need a warrant to obtain evidence that is in plain sight when they enter the building.

For example, a police officer may witness a robbery or an assault and begin to pursue the criminal to make an arrest.  If the criminal flees and takes refuge in a private residence then the police may follow him and they do not need a search warrant to enter the home nor to collect evidence that is in plain sight or within the reach of the alleged criminal.

Police may also enter a residence without a warrant if they hear a person screaming for help or have reason to believe that a person or property is in imminent danger and that harm would result in the time it would take to obtain a search warrant.

Search Incident to Arrest: Police officers may search the body and immediate surroundings of a person whom they take into custody.  The courts have allowed this exception to the search warrant rule in order to protect police officers from people who may have concealed weapons.

Search warrants are the government’s way of balancing an individual’s Fourth Amendment rights with the societal interest in limiting crime and protecting the public.   Therefore, the general rule is that a search warrant must be obtained before the police conduct a search but exceptions to that rule exist to protect police officers and society from harm.

Criminal Law Sub-categories