Paul John

How to Tell When They Need a Search Warrant

March 01, 2008  |  by Devallis Rutledge – Also by this author

Written to Law Enforcement Officers.

You have to reign in your natural hunter’s instinct and take the time to get a search warrant. There’s the affidavit of probable cause to compose, the warrant form to fill out, maybe a review by the local prosecutor, and then finding a magistrate to submit the package to for approval. It’s a hassle.

But it’s a hassle the Constitution imposes, if your investigation has led you to a residence, garage, barn, outbuilding, warehouse, office, storage locker, package, vehicle, boat, or other place protected by the Fourth Amendment. The constitutional protection “against unreasonable searches and seizures” has been interpreted by the U.S. Supreme Court to mean that a search warrant is necessary to make searches and seizures “reasonable” unless the circumstances justify application of one or more of the recognized exceptions. (Katz v. U.S.)

Because warrantless searches and seizures are presumed to be unreasonable, the general rule-of-thumb is to try to get a warrant whenever possible. On the other hand, if you can seize evidence without engaging in a search, you don’t need either a warrant or any exception. Therefore, the initial inquiry in determining whether you need a search warrant is whether you can seize the evidence without making a “search.”

Is There a Search?

Not every acquisition of evidence involves a “search” as the Supreme Court has defined the term. The court has said that a Fourth Amendment “search” is a governmental infringement of a legitimate expectation of privacy. (U.S. v. Jacobsen) In situations where it would be unreasonable for a person to expect privacy, there is no “search” to justify, so no warrant is needed. The primary examples of search-less seizures are these:

• ¥ Plain View. If you’re in a place where you have a right to be, you can seize recognizable contraband or evidence in plain sight, without a warrant. (Horton v. California) However, even if displayed in plain view, materials protected by the First Amendment (books, magazines, tapes, movies, etc.) should not be seized until a judicial officer has made a determination that they are seizable. (Fort Wayne Books v. Indiana)
• ¥ Plain Smell. Where either a trained officer or a trained K-9 detects the telltale odor of narcotics or other contraband by simply smelling a container or compartment exposed to lawful police access, the item can be seized and searched without a warrant. (Illinois v. Caballes)
• ¥ Plain Feel. Assuming you have a right to touch an area (such as during a justified weapons frisk of a detainee’s outer clothing), contraband that is immediately recognizable upon first touch can be seized. (Minnesota v. Dickerson)
• ¥ Plain Shape. Some distinctive packages (gun case, meth bindle, etc.) betray their contents by their outward appearance and can support no legitimate expectation of privacy, so there is no “search” when they are opened. (Texas v. Brown)
• ¥ Plain Hearing. No search warrant is needed to overhear incriminating conversations carried on where they might be overheard by members of the public or law enforcement officers. (Hoffa v. U.S.)
• ¥ Open Fields. Evidence that is growing or stored in open fields is subject to police observation and warrantless seizure. (Oliver v. U.S.)
• ¥ Abandoned Property. What a person has knowingly discarded can no longer enjoy a reasonable expectation of privacy. Accessible trash receptacles and discarded containers or items can be examined without a warrant. (California v. Greenwood)
• ¥ Private-Party Revelations. If private individuals not acting as government agents discover contraband or evidence and turn it over to police, the owner’s expectation of privacy has already been compromised (example: parcel shipper opens suspicious package, finds drugs, and delivers the opened package to police). (U.S. v. Jacobsen)
• ¥ Controlled Delivery. No warrant is needed to reopen a container that you lawfully know contains contraband or evidence, merely because you arrange for the container to be delivered to the addressee so as to catch him in possession of it (unless the container is unobservable long enough for the suspect to remove its contents). (Illinois v. Andreas) If the container is allowed to be taken inside private premises, a warrant or some exception would be required to make entry to recover it.
• ¥ Exposed Characteristics. There is no “search” when exemplars are taken from a person in lawful custody, such as fingerprints (Davis v. Mississippi), mug shots (U.S. v. Crews), handwriting samples (U.S. v. Euge), or voice samples. (U.S. v. Dionisio)

Two Search Warrant Prerequisites

Before deciding whether you need to get a warrant to make an entry or search, it’s necessary to determine whether you could get one. You can obtain a warrant only if you have both probable cause and an opportunity to obtain a warrant.

Probable cause requires a reliable showing of a “fair probability” the target location contains contraband or the fruits, instrumentalities, or evidence of a crime. (Illinois v. Gates) If you don’t have PC, there can be no nonconsensual search in most cases, whether with or without a warrant. So your next inquiry is, “Do I have PC for a search?”

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