This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
Magistrates Search Warrant
A search warrant is basically an order from a court issued by either a judge or a magistrate who authorizes law enforcement to conduct a search of a location or of an individual for evidence of a criminal offence and seize the items. The right to privacy and rule a law usually put constraints on the powers of the police investigators. They are required to have search warrants or an equivalent in order to conduct searches within a criminal enquiry.
In authoritarian regimes, the police have the right to search locations and individuals without having to provide the search warrant or the authority fro a court. For instance if the suspect has been chased and entered into a house, the police have the authority to search even when they don’t have the search warrant or authority from the judiciary. These are the exemptions of ‘hot pursuit’
A search warrant is usually written and issued by an legitimate legal authority to a police investigator in order to conduct search. It also states the items to be looked for during the search. This is according to www.asisonline.org/library/glossary/s.xml
In the United States federal warrants are determined under title 18 of the US code. Each state has got its own laws that govern the issuance of the search warrants.
According to the Fourth Amendment to the United States, the searches which are conducted by police require search warrants which are based on probable cause. In the United States also there exist exceptions which are of ‘hot pursuit’.
For officer to obtain a search warrant he or she must prove to the magistrate that a probable cause exists for that search to be conducted. The probable cause is based upon direct information i.e. it is got from the officer’s personal information or even hearsay information. Hearsay information may be obtained from telephone calls, as long as the basis of the source is reliable.
Property and people can be seized during the searches which have been approved through a search warrant. A search warrant is therefore important because what have been seized during the search will be evidence without reasonable doubt. When a search is conducted without a search warrant, what have been seized may not be sufficient to convict but it may be sufficient to suggest enough evidence may be found when a search warrant have been used.
In searching of vehicles on the road, search warrants are not required. Also in non-residential areas where they have probable cause that it contains items which can be used as evidence of crime. Police may therefore search passengers and open their goods which are in the vehicle.
Search warrant and even a probable cause are not required from a police when they want to conduct a limited search an individual whom they suspect. They search clothing for any weapons. This is only when the police have reasonable suspicion which will help him to justify the intrusion.
According to the Fourth Amendment the searches which are being conducted by the police officers must have a reason and also bear specificity. This means that a certain search should be to the specified person or property. Other items which may require additional search warrants include vehicles, persons and outbuildings.
A search warrant is not required when consent has been given by the authority in control of the items being searched. When evidence is also plain view in United States the search warrant is not required.
When an individual has already been arrested a search warrant is also not required. The police are allowed by the authority to conduct a full search of the person immediate surrounding vehicles etc, for weapons or any other thing that can be used as evident of crime. If he person have been arrested inside the house the police has a right to search the house and conduct a ‘protective sweep’ of the premises where there is fear which is reasonable that there may be other individuals hiding in those premises. Searched may be conducted also in situations where the police officers feel that there is public danger.
In rented properties the landlord does not allow the police to search a tenant’s house. In this case a search warrant is required to search the tenant’s house as it would happen if it was his or her home. But a hotel may be able to be searched with the management’s consent without the guest or occupier of the room consent or approval.
Preparations are usually made before any search to a certain premise is made. Officers who will conduct the search will try as much as possible to obtain information which is helpful to them from inside sources which will be kept confidential. Such information may be given by the undercover cops or informants. Where there suspicion flight risk officers are around to surround the premises, guard the relevant doors, windows and any other routes that may be used by the persons to escape.
However for the police to search a person after an arrest, the arrest must be lawful. If the police had enough time to procure a search warrant but did not do so makes the search that he or she conducted to be unreasonable.
According to http://www.washburnlaw.edu/wlj/40-2/article/shuck-sherri.pdf the only way in which the Fourth Amendment’s warrant requirement of United States can be enforced is by maintaining integrity of the exclusionary rule. The integrity can be maintained by not allowing the use of the independent source doctrine in the situation where the police officers have the probable cause to procure a warrant and have the ability to procure a warrant but they chose not to procure the search warrant.
According to http://www.answer.com/search+warrant&r=67 for a search warrant to be obtained the police officers is required to sign an affidavit which contains supporting information which then establishes grounds or circumstances for the warrant. The officer swears that the information in the affidavit is true to the best of his knowledge when he signs the affidavit. In case a police officer lied when obtaining the search warrant he or she may be held personally liable to the individuals or property searched. However the police officer may not be liable if another officer who is reasonable could have believed if the search was conducted without a warrant would have been unlawful; but only in he light of established law and according to the information the officer had at that time.
The officer who also needs the search warrant should also be personally present or speak directly to the legal authority available such as the judge or magistrate. He or she should give information that will help in establishing a probable cause which would yield that the search could lead to evidence which is related to a crime. The officer then fills the affidavit with specificity about the individuals to be seized and searched as well as the premises or property. Usually the warrant need not to specify the manner in which the search will be carried out.
According to http://www.irs.gov/irm/part9/cho4s12.html a search should be made up of the following document and each of them should have a specified legal purpose. The documents are application for search warrant. Affidavit, search warrant, search warrant attachment and search warrant return. The search warrant attachments are two which are description of the location which will be searched and the description of the items which will be searched.
The search should be returned after the search has been conducted. It is returned within 10 days from the execution of the search and also the inventories of seizes items should also be returned to the legal authority who executed the search warrant. The inventories should indicate the seized items were contraband and also whether some of the items were returned toe the custodian. A recipient for the items returned is obtained or turned over to other federal or local law enforcement.
Search warrants have checklists which are prepared for all search warrants. One search warrant checklist is prepared for the many related sites on one investigation. It is not required in investigation where by the CI agents are assisting other federal, social or state agencies.
There are plans for search warrant which are prepared for all CI search warrants. It is usually one search warrant plan for each search warrant site.
Changes about time and date of the search should always be notified to the SAC. Once the police officer who is searching has entered the premises, it should be secured and the warrant should be read to the person who is the controller of the premise.
Before a search photographs or even videos are taken to show the condition of the premises at that time. They also help in identifying the site of evidence which was seized. The premise is later sketched and its rooms are labeled.
Broader searches beyond what is described by the warrant are often justified by reasons such as the officers’ safety and that of others, prevention of evidence destruction to know more about the evidence and in such for other property which may be believed to be in other sites.
The person who is connected with the search is not ever present when the warrant is issued. He or she may therefore not contest it at that time but can later challenge the validity of the warrant before his or her trial.
All things being equal search warrant cannot be considered to be equal. A search warrant to locate and seize just one single piece of evidence e.g. cocaine, firearm etc is fairly a simple matter as compared to that of obtaining a corporations business records.
Warrants can therefore be said to be powerful and restrictive tools used in investigation. They are intrusive because they allow the officers to intrude into ones privacy.
- Abernathy, G.M. and Perry, A, B, (1993) Civil liberties under the constitution, USA: University of South California Press.
Cite This Essay
To export a reference to this article please select a referencing style below: