The 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. (1) These words of the Fourth Amendment give the people protection against unnecessary harassment by local, state and federal law enforcements. Authorities have to go through a process to acquire a warrant to search homes, papers, effects and persons with probable cause.
However, there is a rationale for a warrantless search. This poses the questions: What is the rationale for allowing warrantless searches, are those reasons persuasive and do all such searches require that probable cause exist or are there exceptions? The definition of a warrant is a writ permitting or directing someone to take some action. Often, the term refers to a writ from a judge; permitting law enforcement personnel to take some action, such as: make an arrest, search a location, or seize some piece of property. (1) There are many different types of warrants.
Some include: a search warrant, an arrest warrant, an anticipatory warrant, and a no-knock warrant. A Search Warrant is an order signed by a judge that directs owners of private property to allow the police to enter and search for items named in the warrant. Judges won’t issue a warrant unless they have been convinced by the police that there is probable cause for the search — that reliable evidence shows that it’s more likely than not that a crime has occurred and that the items sought by the police are connected with it and will be found at the location named in the warrant.
In limited situations, the police may search without a warrant, but they cannot use what they find at trial if the defense can show that they had no probable cause for the search. An Arrest Warrant is a document issued by a judge or magistrate that authorizes the police to arrest someone. Warrants are issued when law enforcement personnel present evidence to judges or magistrates that convince them that it is reasonably likely that a crime has taken place and that the person to be named in the warrant is criminally responsible for that crime.
An Anticipatory Warrant is a warrant that is based on an affidavit that shows probable cause that evidence of a particular crime will be at a specified location at some time in the future. A No-Knock Warrant is a search warrant authorizing police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. (2) Each of these warrants must first be approved by a judge or a magistrate and must meet certain requirements. The authorities must go through a process to obtain a warrant. Only judges may issue search warrants.
Search warrants must be specific and reasonable before they are granted by the judge in a court of law. To obtain a warrant, law enforcement officers must show that there is probable cause to believe a search is justified. Probable cause is the amount and quality of information police must have before they can search or arrest without a warrant. (3) Some of the specifics they must include are of the following: If one room of a house is listed on the search warrant than only that room can be searched. If other rooms need to be searched than another warrant must be obtained by law enforcement officials.
If a vehicle needs to be searched on a property, a separate warrant needs to be obtained for the vehicle. And the warrant must be of reasonable inclusivity. (2) If these requirements are not met, then the judge will not grant the warrant. Courts use a reasonableness test when considering whether a search violates the federal Constitution. This reasonableness test preempts other state and federal laws. If a “no-knock” entry is unreasonable at the time police execute a search warrant, they must “knock and announce” their presence, even if they have a no-knock warrant. 4) This is where the Exclusionary Rule comes into play.
The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. It applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. It is defined as a rule of evidence that disallows the use of illegally obtained evidence in criminal trials. (4) Warrants must be issued before authorities can search and seize property and if they do not obtain a warrant first they are violating a person’s Miranda Rights.
Although in most cases a warrant is required, there are a few situations in which there are exceptions to needing probable cause for a warrant. A warrant is not needed is in a time of consent. If a police officer stops you and you consent to allowing him to search your car, a warrant is not needed. If anything illegal is found on you or on your property then those items can be confiscated and you can be arrested. Another time is when illegal items are in plain view of an officer during a traffic stop or during a routine police procedure.
Items in plain view can be drugs, weapons, or stolen goods. However, plain view only comes into effect when the officer is lawfully on the premises. During a traffic stop, if a police officer arrests the driver of a vehicle, they are then allowed to search the car and its compartments for contraband and weapons without a search warrant. When a person is arrested in their house or their office building the officer is allowed to legally search the room that they arrested the suspect in and perform a protective sweep of the building to check if there are other people hiding in the building.
And most importantly, a search can be conducted without a search warrant when police officers feel that the public is in danger during any emergency situations. (2) When driving onto a military base there is a clear sign that states the standing warrant that if you pass through the gates you are consenting to allowing the Military Police search your car if they feel the need to. And when you drive onto a base you are guaranteed to see at least one random car search every time.
Not every situation calls for a warrant needed to search homes, papers, effects and persons with probable cause. Law enforcement is required to obtain a warrant issued by a magistrate or a judge in a court of law. If said warrant is not issued and authorities still search you, all evidence they find will be thrown out. However, there are certain terms in which a warrant is not required. The words of the Fourth Amendment give the people protection against unnecessary harassment by local, state and federal law enforcements.
Courtney from Study Moose
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