Whether it’s from watching police procedurals or real-life experience, most people have heard the phrase “search warrant.” They may even know that in most circumstances police must have a warrant in order to search their home or car. But where does this requirement come from, and how does it work? The need for a warrant to conduct a search or seizure stems from the Constitution’s Fourth Amendment.
“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.”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Emphasis upon the necessity of warrants places the judgment of an independent magistrate between law enforcement officers and the privacy of citizens, authorizes invasion of that privacy only upon a showing that constitutes probable cause, and limits that invasion to the specification of the person to be seized, the place to be searched, and the evidence to be sought.1 Although a warrant is issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and prosecution is brought.2
In numerous cases, the Court has referred to the necessity that warrants be issued by a judicial officer or a magistrate.3 The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.4 These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.5 The first test cannot be met when the issuing party is himself engaged in law enforcement activities,6 but the Court has not required that an issuing party have that independence of tenure and guarantee of salary that characterizes federal judges.7 And, in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause.8
The concept of probable cause is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.9 Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.10 Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.11 For the same reason, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.12 Courts will sustain the determination of probable cause so long as there was a substantial basis for [the magistrate] to conclude that there was probable cause.13
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.14 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.15 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.16
The Fourth Amendment’s general touchstone of reasonableness governs the method of execution of the warrant.17 Until recently, however, most such issues have been dealt with by statute and rule.18 It was a rule at common law that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance,19 and until recently this has been a statutory requirement in the federal system20 and generally in the states. In Ker v. California,21 the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement.
In Wilson v. Arkansas,22 the Court determined that the common law knock and announce rule is an element of the Fourth Amendment reasonableness inquiry. The rule is merely a presumption, however, that yields under various circumstances, including those posing a threat of physical violence to officers, those in which a prisoner has escaped and taken refuge in his dwelling, and those in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v. Wisconsin,23 is whether police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. In Richards, the Court held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation; instead, a case-by-case analysis is required to determine whether no-knock entry is justified under the circumstances.24 Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is not a prompt response.25 Recent federal laws providing for the issuance of warrants authorizing in certain circumstances no-knock entries to execute warrants will no doubt present the Court with opportunities to explore the configurations of the rule of announcement.26 A statute regulating the expiration of a warrant and issuance of another should be liberally construed in favor of the individual.27 Similarly, just as the existence of probable cause must be established by fresh facts, so the execution of the warrant should be done in timely fashion so as to ensure so far as possible the continued existence of probable cause.28
Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police officers violate the Amendment by bringing members of the media or other third parties into a home during execution of a warrant if presence of those persons was not in aid of execution of the warrant.29
In executing a warrant for a search of premises and of named persons on the premises, police officers may not automatically search someone else found on the premises.30 If they can articulate some reasonable basis for fearing for their safety they may conduct a patdown of the person, but in order to search they must have probable cause particularized with respect to that person. However, in Michigan v. Summers,31 the Court held that officers arriving to execute a warrant for the search of a house could detain, without being required to articulate any reasonable basis and necessarily therefore without probable cause, the owner or occupant of the house, whom they encountered on the front porch leaving the premises. The Court determined that such a detention, which was substantially less intrusive than an arrest, was justified because of the law enforcement interests in minimizing the risk of harm to officers, facilitating entry and conduct of the search, and preventing flight in the event incriminating evidence is found.32 For the same reasons, officers may use reasonable force, including handcuffs, to effectuate a detention.33 Also, under some circumstances, officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid warrant.34
Limits on detention incident to a search were addressed in Bailey v. United States, a case in which an occupant exited his residence and traveled some distance before being stopped and detained.35 The Bailey Court held that the detention was not constitutionally sustainable under the rule announced in Summers.36 According to the Court, application of the categorical exception to probable cause requirements for detention incident to a search is determined by spatial proximity, that is, whether the occupant is found within the immediate vicinity of the premises to be searched,37 and not by temporal proximity, that is, whether the occupant is detained as soon as reasonably practicable consistent with safety and security. In so holding, the Court reasoned that limiting the Summers rule to the area within which an occupant poses a real threat ensures that the scope of the rule regarding detention incident to a search is confined to its underlying justification.38
Although, for purposes of execution, as for many other matters, there is little difference between search warrants and arrest warrants, one notable difference is that the possession of a valid arrest warrant cannot authorize authorities to enter the home of a third party looking for the person named in the warrant; in order to do that, they need a search warrant signifying that a magistrate has determined that there is probable cause to believe the person named is on the premises.39
1. Although the exceptions may be different for arrest warrants and search warrants, the requirements for the issuance of the two are the same. Aguilar v. Texas, 378 U.S. 108, 112 n.3 (1964). Also, the standards by which the validity of warrants are to be judged are the same, whether federal or state officers are involved. Ker v. California, 374 U.S. 23 (1963).
2. Most often, in the suppression hearings, the defendant will challenge the sufficiency of the evidence presented to the magistrate to constitute probable cause. Spinelli v. United States, 393 U.S. 410 (1969); United States v. Harris, 403 U.S. 573 (1971). He may challenge the veracity of the statements used by the police to procure the warrant and otherwise contest the accuracy of the allegations going to establish probable cause, but the Court has carefully hedged his ability to do so. Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power of the official issuing the warrant, Coolidge v. New Hampshire, 403 U.S. 443, 449–53 (1971), or the specificity of the particularity required. Marron v. United States, 275 U.S. 192 (1927).
3. United States v. Lefkowitz, 285 U.S. 452, 464 (1932); Giordenello v. United States, 357 U.S. 480, 486 (1958); Jones v. United States, 362 U.S. 257, 270 (1960); Katz v. United States, 389 U.S. 347, 356 (1967); United States v. United States District Court, 407 U.S. 297, 321 (1972); United States v. Chadwick, 433 U.S. 1, 9 (1977); Lo-Ji Sales v. New York, 442 U.S. 319 (1979).
6. Coolidge v. New Hampshire, 403 U.S. 443, 449–51 (1971) (warrant issued by state attorney general who was leading investigation and who as a justice of the peace was authorized to issue warrants); Mancusi v. DeForte, 392 U.S. 364, 370–72 (1968) (subpoena issued by district attorney could not qualify as a valid search warrant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued open-ended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items).
7. Jones v. United States, 362 U.S. 257, 270–71 (1960) (approving issuance of warrants by United States Commissioners, many of whom were not lawyers and none of whom had any guarantees of tenure and salary); Shadwick v. City of Tampa, 407 U.S. 345 (1972) (approving issuance of arrest warrants for violation of city ordinances by city clerks who were assigned to and supervised by municipal court judges). The Court reserved the question whether a State may lodge warrant authority in someone entirely outside the sphere of the judicial branch. Many persons may not qualify as the kind of ‘public civil officers’ we have come to associate with the term ‘magistrate.’ Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations. Id. at 352.
8. 407 U.S. at 350–54 (placing on defendant the burden of demonstrating that the issuing official lacks capacity to determine probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977) (unsalaried justice of the peace who receives a sum of money for each warrant issued but nothing for reviewing and denying a warrant is not sufficiently detached).
9. Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). [T]he term ‘probable cause’ means less than evidence which would justify condemnation. Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An anticipatory warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, there is a fair probability that contraband or evidence of a crime will be found in a specified place. United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). An anticipatory warrant is 'a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.' 547 U.S. at 94.
12. Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
13. Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause. Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
14. Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to a warrant may seize evidence of crime in plain view even if that evidence is not described in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464–71 (1971).
15. In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931); see United States v. Di Re, 332 U.S. 581, 586–87 (1948). The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Justice Fortas concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367–368 (1964); Agnello v. United States, 269 U.S. 20, 30–31 (1925). See also Andresen v. Maryland, 427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Justice Brennan dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and White would have based the decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents.
16. Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not describe the items to be seized was plainly invalid; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment specifies only two matters that must be 'particularly describ[ed]' in the warrant: 'the place to be searched' and 'the persons or things to be seized[,]' . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.”
18. Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that the warrant shall command its execution in the daytime, unless the magistrate for reasonable cause shown directs in the warrant that it be served at some other time. See Jones v. United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A separate statutory rule applies to narcotics cases. 21 U.S.C. § 879(a).
19. Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).
21. 374 U.S. 23 (1963). Ker was an arrest warrant case, but no reason appears for differentiating search warrants. Eight Justices agreed that federal standards should govern and that the rule of announcement was of constitutional stature, but they divided 4-to-4 whether entry in this case had been pursuant to a valid exception. Justice Harlan who had dissented from the federal standards issue joined the four finding a justifiable exception to carry the result.
22. 514 U.S. 927 (1995).
23. 520 U.S. 385, 394 (1997).
24. The fact that officers may have to destroy property in order to conduct a no-knock entry has no bearing on the reasonableness of their decision not to knock and announce. United States v. Ramirez, 523 U.S. 65 (1998).
25. United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after officers executing a warrant to search for drugs knocked, announced police search warrant, and waited 15-20 seconds with no response).
26. In narcotics cases, magistrates are authorized to issue no-knock warrants if they find there is probable cause to believe (1) the property sought may, and if notice is given, will be easily and quickly destroyed or (2) giving notice will endanger the life or safety of the executing officer or another person. 21 U.S.C. § 879(b). See also D.C. Code, § 23-591.
28. Sgro v. United States, 287 U.S. 206 (1932).
29. Wilson v. Layne, 526 U.S. 603 (1999). Accord, Hanlon v. Berger, 526 U.S. 808 (1999) (media camera crew ride-along with Fish and Wildlife Service agents executing a warrant to search respondent’s ranch for evidence of illegal taking of wildlife).
30. Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar), relying on and reaffirming United States v. Di Re, 332 U.S. 581 (1948) (occupant of vehicle may not be searched merely because there are grounds to search the automobile). But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that passengers in car often have common enterprise, and noting that the tip in Di Re implicated only the driver.
31. 452 U.S. 692 (1981).
32. 452 U.S. at 701–06. Ybarra was distinguished on the basis of its greater intrusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4. By the time Summers was searched, police had probable cause to do so. Id. at 695. The warrant here was for contraband, id. at 701, and a different rule may apply with respect to warrants for other evidence, id. at 705 n.20. In Los Angeles County v. Rettele, 550 U.S. 609 (2007), the Court found no Fourth Amendment violation where deputies did not know that the suspects had sold the house that the deputies had a warrant to search. The deputies entered the house and found the new owners, of a different race from the suspects, sleeping in the nude. The deputies held the new owners at gunpoint for one to two minutes without allowing them to dress or cover themselves. As for the difference in race, the Court noted that, [w]hen the deputies ordered white respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. Id. at 613. As for not allowing the new owners to dress or cover themselves, the Court quoted its statement in Michigan v. Summers that [t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. Id. at 1993 (quoting 452 U.S. at 702–03).
33. Muehler v. Mena, 544 U.S. 93, 98–99 (2005) (also upholding questioning the handcuffed detainee about her immigration status).
34. Maryland v. Garrison, 480 U.S. 79 (1987) (officers reasonably believed there was only one third floor apartment in city rowhouse when in fact there were two).
35. 568 U.S. 186 (2013). In Bailey, the police obtained a warrant to search Bailey's residence for firearms and drugs Id. at 190. Meanwhile, detectives staked out the residence, saw Bailey leave and drive away, and then called in a search team. Id. While the search was proceeding, the detectives tailed Bailey for about a mile before stopping and detaining him. Id. at 190–92.
36. As an alternative ground, the district court had found that stopping Bailey was lawful as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 (1968), but the Supreme Court offered no opinion on whether, assuming the stop was valid under Terry, the resulting interaction between law enforcement and Bailey could independently have justified Bailey's detention. Bailey, 568 U.S. at 202.
37. Bailey, 568 U.S. at 202–04.
38. Id. at 202.