How is search warrant obtained

Criminal Law Contents. Common exceptions to the warrant requirement include: Consent. Police may conduct a search without a search warrant if they obtain consent. Consent must be freely and voluntarily given by a person with a reasonable expectation of privacy in the area or property to be searched.

Plain View. An officer may seize evidence without a warrant if an officer is on the premises lawfully and the evidence is found in plain view. Search incident to arrest. While conducting a lawful arrest, an officer may search an individual's person and their immediate surroundings for weapons or other items that may harm the officer. If a person is arrested in or near a vehicle, the officer has the right to search the passenger compartment of that vehicle.

Exigent Circumstances. Police are not required to obtain a search warrant if they reasonably believe that evidence may be destroyed or others may be placed in danger in the time it would take to secure the warrant. Automobile Exception. An officer may search a vehicle if they have a reasonable belief that contraband is contained inside the vehicle. Hot Pursuit. Police may enter a private dwelling if they are in "hot pursuit" of a fleeing criminal.

Once inside a dwelling, police may search the entire area without first obtaining a search warrant. Criminal Law. Aggravating and Mitigating Factors in Criminal Sentencing. Restitution for Crime Victims. In Richards v. Wisconsin , U. An anticipatory warrant grants police officers a warrant that becomes valid after some future triggering condition occurs.

Courts reserve these types of warrants for situations in which police have probable cause that at some future time evidence in a particular location will become available. In United States v. Grubbs , U. Police officers may obtain warrants to seize and search electronic storage media or electronically stored information. The rules allow officers to copy seized material for later review.

The new version of Rule 41 governing these searches also allows police officers to plant tracking devices on persons or property. Generally, only under special circumstances may police officers execute search warrants at night. In practice, the special circumstances exception applies most frequently in drug cases. When conducting a search, police may only search the places and people listed on the search warrant, and may only search for the sought-after evidence.

Accordingly, officers may only search places where they might reasonably find the evidence. For example, officers searching for a rifle may not look in a small jewelry box. Search warrants may authorize police to search specific, named people found at the targeted location.

However, officers executing a search warrant may detain anyone present during the search. Furthermore, if officers find sufficient evidence to arrest someone present, they may arrest and search that person, even if the person was not listed on the warrant.

See "Incidental Searches" above. Rule 41 f 1 of the Federal Rules of Criminal Procedure discusses the federal requirements for returning a warrant. Most jurisdictions impose additional post-search procedural safeguards. For example, many jurisdictions require officers to return a copy of the search warrant to the judge after executing it. This return copy must include information about the search, including a list of what was seized.

Similarly, most jurisdictions require officers to give a receipt for seized property. Police may sometimes also make what's known as a " protective sweep " of the premises following an arrest. They can "sweep" if they have reason to suspect that a dangerous accomplice might be hiding in the area in question. Even without that kind of suspicion, they typically may look in spaces immediately next to the area of the arrest that could hold a hidden attacker.

A protective sweep is supposed to be limited to a cursory visual inspection of places where an accomplice might be hiding. For example, police officers can often look under beds and inside closets.

If a sweep is lawful, the police can seize contraband or evidence of crime that is in plain view during the sweep. But the sweep must be aimed at protecting the officers, not gathering evidence.

As a general rule, the police are authorized to conduct a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence.

Here are some situations in which most judges would uphold a warrantless search:. In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement. Santana , U. Murphy , U. But not all emergency situations are cut and dry. For instance, the Supreme Court held that "hot pursuit" of someone suspected of a minor crime such as a noise violation or misdemeanor won't always justify warrantless entry of a home.

Lange v. California, U. A police officer may stop someone he reasonably suspects of criminal activity, and he may frisk the person for weapons if he reasonably suspects the person is armed and dangerous. This type of warrantless "search" is known as a Terry frisk. If the stop or frisk leads to probable cause for a full-blown arrest, the officer can conduct a search incident to arrest above.

Terry v. Ohio , U. If you've been arrested or charged with a crime, or otherwise want to know how the law applies to your situation, consult an experienced criminal defense lawyer. The law can vary somewhat from state to state, and a knowledgeable lawyer can fully explain it to you. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.

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Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. When must the police obtain a warrant before searching your home or other property? What Police Can Search for and Seize Under a Warrant The police can search only the place described in a warrant and for only the property that the warrant describes.

Consent Searches What if the person in control of the premises freely and voluntarily agrees to the search? On the other hand, a reasonable interpretation of "house" may not include vehicles, backyard storage sheds, detached greenhouses, or any buildings or property located outside the dwelling Courts consider consent valid if the police reasonably believed that the consenting person had the authority to consent , even if it turned out that he or she didn't.

The Plain View Doctrine A police officer doesn't need a warrant to seize contraband or evidence that is "in plain view" if the officer is legitimately in the area where the evidence or contraband is first spotted.

Search Made in Connection With an Arrest A police officer doesn't need a warrant to conduct a search "incident to" an arrest. The Emergency Exception As a general rule, the police are authorized to conduct a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence.

Here are some situations in which most judges would uphold a warrantless search: Following a street drug arrest , an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush it! A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.