What is a Search Warrant, and in What Situations are They Necessary?
Most people are aware there are situations in which police must obtain a search warrant before they can search a home or other property. What exactly is a search warrant, and when are police required to have a warrant before they can perform a search? These are some of the questions our Orlando criminal defense attorneys will address in this article.
What is a search warrant? Essentially, it is an order a judge must sign in order for police to have permission to perform a search. A warrant authorizes police to search only at a specified time, and at a specific or designated location for certain objects or materials, such as illegal drugs, firearms, etc.
How do police obtain a search warrant? Basically, a judge or magistrate must be convinced that police have "probable cause" to believe that evidence of a crime that occurred may be found at the specified location, or that criminal activity is taking place. In most cases, police may obtain affidavits (written statements under oath) that contain information regarding the observations of citizens, undercover police informants, or even police themselves of the criminal activity or evidence to provide to the judge/magistrate, convincing him/her of the need for a search warrant.
Search warrants are very specific as to the property/area and items that may be searched. Search warrants contain very specific details regarding the area/property that may be searched, and the item(s) that may be searched for. For example, if a search warrant specifies a garage or storage building on a property may be searched, the home cannot be searched. If police are in search of evidence of marijuana cultivation, they cannot specifically search for weapons. However, if police do happen across evidence of a crime or contraband in the course of performing a search for specifically listed items, they are permitted to seize those unlisted items under the law.
Search warrants are not required in most cases. Courts have determined in recent years that many situations do not require the issuing of a search warrant, simply because a search is considered reasonable under many circumstances. A search warrant is also not required in instances where the Fourth Amendment does not apply.
Do police need to obtain a search warrant once an arrest has been made? No. Following an arrest, a police officer may search for weapons in an effort to protect him- or herself. Additionally, officers may search for evidence that the alleged offender would likely attempt to destroy by searching him or her following the arrest. It is also important to note that a residence or other location may be searched without a warrant if police arrest a suspect, and believe a potentially dangerous accomplice may be hiding on a property. This is what is often referred to as a "protective sweep," and involves a walk-through and cursory visual inspection of closets, basements, under beds, or areas where an accomplice would likely hide.
Must police obtain a search warrant to search a car/vehicle? Police do not have to have a search warrant if the vehicle was stopped for a valid reason, and officers have probable cause to believe evidence of a crime/contraband may be present in the vehicle. When probable cause exists, police may search all packages in the vehicle, and compartments such as glove box, console, trunk, etc. In essence, any bags, boxes, compartments, or areas of the vehicle are fair game. A vehicle cannot be searched when the driver was pulled over for a simple traffic infraction, however police can order all persons inside to exit for safety reasons regardless of whether there is suspicion of criminal wrongdoing. Police who are concerned for their safety or who have reasonable suspicion that the driver/passengers in a vehicle may be involved in criminal activity may also "frisk" occupants.
Police may search without a warrant in an emergency situation, such as when the public's safety may be at risk during the time it would take to obtain a warrant. In circumstances where critical evidence may be lost/destroyed or someone's life may be in danger, a search warrant may not be required. It is the duty of police officer to preserve evidence, and protect individuals and the public.
Police may perform a warrantless search when evidence is in "plain view." For example, if a police officer walks by a vehicle and sees an open container of alcohol, a bag of marijuana, or other contraband through a window, he/she may perform a search. The same is true if evidence of cultivating marijuana or "cooking meth" is in plain view from a helicopter or airplane from the sky - the property may be searched without a warrant.
For more information regarding search warrants and when they are necessary, contact the Orlando criminal defense lawyers at Adams & Luka today.