{"id":1070,"date":"2014-05-10T18:58:38","date_gmt":"2014-05-10T18:58:38","guid":{"rendered":"http:\/\/www.pauljjhansen.com\/?p=1070"},"modified":"2019-09-18T17:11:48","modified_gmt":"2019-09-18T17:11:48","slug":"search-warrant-when-needed-when-not","status":"publish","type":"post","link":"http:\/\/www.pauljjhansen.com\/?p=1070","title":{"rendered":"Search Warrant, When Needed, When Not"},"content":{"rendered":"

How to Tell When They Need a Search Warrant<\/strong><\/p>\n

March 01, 2008 \u00a0|\u00a0 by Devallis Rutledge – Also by this author<\/a><\/p>\n

Written to Law Enforcement Officers.<\/p>\n

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.<\/p>\n

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.)<\/em><\/p>\n

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.”<\/p>\n

Is There a Search?<\/strong><\/p>\n

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)<\/em> 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:<\/p>\n