Procedure for Obtaining a Search Warrant

Getting a Search Warrant: The Process from Start to Finish

Need to conduct a search but don’t have consent? You’ll need to get a search warrant. This handy guide will walk you through the process step-by-step.

What is a Search Warrant?

A search warrant is a legal document issued by a judge that allows police or other government agents to enter a property and search for evidence of a crime. The warrant specifies the location to be searched and the items being sought.

Search warrants are an important check on government power. The Fourth Amendment protects us from “unreasonable searches and seizures.” Getting a warrant means going through proper legal channels rather than barging in unannounced.

When is a Search Warrant Needed?

Police don’t need a warrant if they have consent from the property owner. But if the owner says no, a warrant is required to search a home, business, car, computer, phone, etc. There are some exceptions, like exigent circumstances, but we’ll focus on the general rule here.

There are also “no-knock” warrants that allow police to enter without warning, but these are less common.

How to Get a Search Warrant: The Process

Step 1: Probable Cause

To get a search warrant, police must demonstrate “probable cause” that evidence of a crime will be found in the place to be searched. This requires more than just a hunch – police need reasonably trustworthy facts that would lead a prudent person to believe a search will turn up evidence.

For example, probable cause could be based on an informant’s tip, surveillance observing suspicious activity, evidence of crime found in plain view or elsewhere, etc. The officer presents these facts in a sworn affidavit.

Step 2: Draft the Search Warrant

If the judge agrees there’s probable cause, the officer drafts the warrant naming the specific place to be searched, items sought, and period of time in which it can be executed. Scope is important – officers can only search where the warrant allows. Anything found outside the scope could be suppressed.

Step 3: Get the Judge’s Signature

The officer takes the affidavit and proposed warrant to a judge, who reviews it and makes sure probable cause is sufficiently established. If satisfied, the judge signs the warrant.

Step 4: Execute Within Time Limit

The warrant is only good for a limited time, like 10 days. Police must execute it within that window, and no earlier than daylight (typically). They can’t barge in at 3 AM without a special nighttime warrant.

Step 5: The Search

With warrant in hand, officers can enter the premises and search the specified areas for the listed items. If they exceed the scope, anything found could be excluded as “fruit of the poisonous tree.”

Step 6: Leave Inventory and Receipt

After completing the search, police must leave either a copy of the warrant or an inventory of items seized. This protects privacy and provides notice of what was taken.

Step 7: Return to Judge

After execution, the officer returns to the judge to swear the warrant was served properly. This provides accountability.

Challenging a Search Warrant

If you believe police lacked probable cause for a warrant, you can challenge it in court and try to suppress evidence from the search. You can argue the affidavit failed to establish probable cause, had false statements, or the warrant exceeded the scope.

An illegal search doesn’t automatically mean charges get dismissed – that’s rare. But evidence directly obtained through the search, or any later evidence derived from it, could potentially be excluded under the exclusionary rule. This weakens the prosecution’s case, so challenging the warrant is worth exploring.

A good criminal defense lawyer can review the warrant affidavit and search details to identify potential defects for suppression arguments. Police do make mistakes too, they’re only human.

But you have to act fast under the 30-day deadline to file a suppression motion. Don’t let your rights slip away – consult an attorney right after an arrest.

Specific Laws on Search Warrants

There are some key laws governing search warrants:

• The Fourth Amendment – Establishes the right against unreasonable searches and seizures and warrant requirements. This is part of the Bill of Rights, so it’s fundamental.
• The Federal Rules of Criminal Procedure – provide procedural rules for federal criminal cases, including Rule 41 on search warrant procedures. States have similar procedural rules.
• Individual state laws – Each state has its own laws regulating warrants, incorporating Fourth Amendment standards. There can be nuances between states.
• Supreme Court decisions – Numerous SCOTUS cases have shaped search warrant requirements over the years through interpretations of the Fourth Amendment. There’s a whole body of case law that continues evolving.

Some notable Supreme Court cases include:

• Illinois v. Gates – Established the totality of circumstances test for determining probable cause based on informants’ tips.
• Kyllo v. United States – Held police need a warrant to use thermal imaging devices to “see” inside homes. Enhanced technology triggers Fourth Amendment protection.
• Maryland v. Garrison – Police relied on a warrant based on mistaken facts, but the evidence was still admitted because officers acted reasonably. Mistakes don’t automatically invalidate warrants.
• Groh v. Ramirez – An incomplete warrant description led to evidence exclusion. Warrants must particularly describe what is to be seized.

There are many more influential cases, but these illustrate some key principles and nuances that arise with search warrants. The law aims to strike a balance between effective law enforcement and individual privacy rights.

Practical Considerations

• Police often first do a “trash pull” – searching someone’s garbage for evidence before seeking a warrant. Trash at the curb is considered abandoned.
• Digital evidence like texts or emails needs specific mention in warrants today. Generic language won’t always suffice.
• Officers can seize items in “plain view” during a search if there’s probable cause linking it to a crime. Even if it’s not listed in the warrant.
• Informants providing tips should be vetted for reliability. Corroboration is also expected. Judges scrutinize anonymous or vague tips.
• Perjury charges are possible for intentionally false warrant affidavits. Most officers are honest, but it does happen on occasion.
• Nighttime warrants require higher scrutiny. Some crimes like drug dealing warrant it more due to the late hours.

The warrant process has many moving parts and isn’t always perfect. But the basic framework aims to balance privacy rights and public safety through what seems to be a fair, neutral procedure on paper. Of course, we know things don’t always play out so cleanly in the real world. If you ever end up on the wrong side of a search warrant, make sure to consult an experienced criminal defense attorney to protect your rights. The law offers protections, but asserting them properly takes expertise.