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Search warrants and The Fourth Amendment

This content about police misconduct was written by a third party and does not represent the views or opinions of Haddad & Sherwin LLP, nor should it be construed as a complete and accurate statement of the law or as legal advice.  For better information about this topic, please contact Haddad & Sherwin LLP.

The Fourth Amendment of the United States Constitution protects Americans from unreasonable search warrants from the government. Meaning that in the absence of an emergency situation or other legal exception, a police officer must have a search warrant before conducting a search of your person or property.

The Fourth Amendment

Search warrants are a means of the government to balance an individual’s Fourth Amendment rights and society’s interest in limiting crime and protecting the public. Accordingly, the general rule is that the search warrant must be obtained before the police conduct a search with exceptions that rule to protect police officers and society from harm.

How to get a search warrant.

The Fourth Amendment requires the warrant to be specific and reasonable. That means the judge will only approve a search warrant if the law enforcement is specific about the things and places you want to search. Law enforcement officers must also prove that there is a probable cause that a specific thing is located in a specific location.

If the order is issued or not, it is at the discretion of the judge. If a judge finds that the officer has reunited the probable cause and has included enough specificity in the warrant request, he or she will issue the search warrant. The suspect won’t be present during this procedure and will not be allowed to present their arguments against the issuance of a search warrant. However, in subsequent proceedings, the suspect can argue that the search warrant was improperly granted.

When is a search warrant not necessary?

There are a few situations in which police officers are exempt from obtaining a search warrant. Those situations include:

  • Consent: The law enforcement officer can request a person’s entry into the home or search a person’s belongings. If the person consents to the registration and permits the executor to register, then the registration order is unnecessary.
  • Plain view doctrine: The law enforcement officer does not need a search warrant to obtain evidence of something in plain view. For example, if an officer walking down the street sees a person with drugs in the park, then the officer can arrest that person and keep the drugs as evidence, even if a search warrant has not been obtained.
  • Emergency situation: If the police are chasing a felon and the individual goes inside a house or other private area, then they do not need a warrant to obtain the evidence that is in sight when they enter the building.

For example, a police officer may witness a robbery or assault and start chasing the offender to arrest him. If the offender escapes and takes refuge in a private residence, then the police can follow him without the need of a search warrant to enter the house or to collect evidence that is in plain sight or within the scope of the alleged offender.

Police officers may also enter a residence without a warrant if they hear that a person is yelling for help or have reason to believe that a person or property is in imminent danger and that damage would occur during the time it would take to get a search warrant.

  • Search incident to arrest: Police officers can search a person’s body and immediate surroundings when taken into custody. The courts have allowed this exception to the rule of obtaining a search warrant to protect police officers from subjects who may bring concealed weapons.

Haddad & Sherwin LLP has a long, successful track record winning wrongful death and other serious civil rights claims for police and jail officer misconduct, throughout Northern and Central California.  Call or email us for a free consultation.

This content was written by a third party and does not represent the views or opinions of Haddad & Sherwin LLP, nor should it be construed as a complete and accurate statement of the law or as legal advice.  For better information about this topic, please contact Haddad & Sherwin LLP.