The most important thing the U.S. Constitution does is to place limits on governmental power. Despite our government’s failure to respect many of those limits, some are still taken seriously. The fourth amendment is one of those limits:
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.”
The bottom line is that no government agent may enter your home and search your stuff without a search warrant. As with everything, there are exceptions to this rule, but I’ll get into those in a later post.
Typically, police will obtain information that evidence of a crime will be found in a private place (home, office, etc.) They take that information to the prosecuting attorney and ask for a search warrant.
An application for the search warrant and a copy of the warrant are drafted. Click here for a blank application, warrant and list of the items seized (called the “return”).
The warrant must set forth the same three things that the fourth amendment demands:
- Names of the things to be searched for and seized.
- The exact place to be searched.
- Sufficient facts to show there is probable cause to believe that the things being looked for will be found at the place specified.
The person (usually the police officer) must swear under oath that he believes these facts to be true. The prosecutor must sign the application. Then the application and search warrant are presented to a judge for signature. Notice that it normally takes three independent persons to agree before a valid search warrant can be issued.
If the warrant is for a home, the police will round up a half-dozen law enforcement officers (or more) and come to the home. Usually, this is done quickly, but the warrant may be good for up to ten days. Unless there are special or urgent circumstances, the police must execute the search warrant during daylight hours and must knock and announce their presence before entering. They may use force, if necessary.
If the police feel threatened, they may handcuff anyone they find inside and may also pat them down for weapons. They may or may not have probable cause to search those persons present.
There is no reason for persons present to AGREE to the search of the home, pockets, purses or whatever, but they must not resist the search. The best thing to do is be polite and say nothing. Say nothing.
When the search is over, the police will leave a copy of the “Return” listing the items seized. This “Return” must be sent to the judge who signed the warrant.
The police may decide they have probable cause to make arrests. This should never be resisted in any way. That simply results in additional charges.
The best thing to do is be polite and say nothing about the search and the items seized. Even giving a home address may provide the evidence necessary to make a criminal charge. In America, one does not have to give evidence against himself.
Keep in mind that a search warrant may be challenged. It may be defective. It may be too old. It may not cover the items seized. The time to question it, however, is not when it is served. It can be challenged later by a criminal defense attorney.
That’s the short version. Next time we’ll go over some important exceptions to the general rule that there can be no searches without a warrant.