Free «A Search Warrant and Personal Rights» Essay Sample

A search warrant is a documented authorization that allows law enforcement officers to enter into private premises, search and seize property, and detain it as evidence of crime or for use in investigation (Modiano, 2000). Search warrants are legally issued only by a judge, after the police proves there is a probable cause that merits the search and not that the person to be searched committed a crime, as was discussed in Zurcher v. Stanford Daily case, 436 U.S. 547 (1978). In this case, the Supreme Court had issued a search warrant against a student newspaper that was not in any way implicated in any criminal activity; nevertheless, the law enforcers had reason to believe that it had evidence against demonstrators in the form of photographs. Warrants are restricted to when, where and how they should be used. Warrants to search and seize should not be given unless probable cause is proven, the support of an oath or affirmation together with the description of where and what things or individuals should be searched should be provided.

On the other hand, in case of a warrantless search, law enforcement officers conduct a search without an authority from the court to do so (Project on Law Enforcement Policy and Rulemaking, 1974). In the United States of America, these searches are restricted by the Bill of Rights, specifically by the Fourth Amendment. The Fourth Amendment states, “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.” As a rule, police officers have no authorization to carry out searches that are random in nature. The Supreme Court, however, has asserted that searches without warrants by police officers may be compliant with the Fourth Amendment, as long as they are reasonable under certain circumstances. There are some exceptions to the Fourth Amendments that are aimed at enabling the law enforcement officers to carry out their work fully. The court seeks to strike a balance to suit the day-to-day practical realities of the law enforcers’ job, public interests, and individual freedoms. The stringent application of the Fourth Amendment would translate to having a police officer spend a lot of time on completing a warrant application and justifying it to a judge. Such procrastination in receiving a search warrant would lead to destruction of vital evidence, commission of crimes that were only at the preparatory stage, and disappearance of a suspect or witness.

Tests for Conducting a Warrantless Search

Today, the courts use reasonable tests and procedures to ascertain whether the search violates the privacy or not. Such tests for conducting a warrantless search that is admissible as evidence is twofold: the standard of reasonableness balancing and the reasonable suspicion test.

Reasonableness Balancing Test

This test considers and balances the reasons for conducting a search without a warrant and the right to privacy of an individual. It was considered in the case of Terry v. Ohio, 392 U.S1 (1968), where the Supreme Court held that searches without warrants and unauthorized seizures were constitutionally permissible in certain limited instances. The Court’s main problem was to determine whether the warrant and probable clauses contained in the Fourth Amendment were applicable to searches and seizures or not. The Court initiated the test and, by assessing the search and/or seizure against the owner’s privacy, decided that the actions of the government were reasonable within the given circumstances. 

Reasonable Suspicion Test

In case of a reasonable suspicion test, the Court determines whether inferences from the facts articulated by the officer provide reasonable suspicion. Consequently, it decides whether the unwarranted search or seizure is justifiable and whether it is reasonable to intrude into such privacy without a warrant. The reasonable suspicion that a felony has been or is in the process of commission is based on certain grounds, such as reliable hearsay, personal inferences of the police officer, use of criminal profiles, or even unprovoked flight.

Hearsay, for instance, was considered in the case of Adams v. Williams, 407 U.S 143 (1972); the information was taken into consideration as the police informant had provided reliable information to the police for several times earlier. If information is received from such an informant, the police can act on this tip: conduct a search without a warrant and seize property of the suspect, All required evidence can be admissible based on the reasonable test suspicion. Nevertheless, it is crucial to prove that the informant is true and reliable. In the case of Alabama v. White, 496 U.S. 325 (1990), for example, the tip failed the test as the information was received from an anonymous source, and it could not be proven reliable.

Where a seizure is done based on a less probable cause, the time that the property or person is detained is of great importance, though there is no specific time limitation. In the case of United States v Place, 462 U.S. 696 (1983), a person was suspected of possessing narcotics; consequently, he had been detained for ninety minutes and subjected to a dog sniff. The Court asserted that it was an excessively long detention. However, in United States v. Montoya de Hernandez case, 473 U.S. 531 (1985), another decision was made, and the detention was proved to be reasonable. A woman who had swallowed narcotics wrapped for smuggling refused to have an X- ray. She had been detained for sixteen hours until she had a bowel movement..

A warrantless search and/or seizure are applied in exceptional cases if only it is deemed justifiable and reasonable.

Public Arrest and Hot Pursuit

In case of arresting in a public place, there are no specific requirements for arresting a person, who had committed a felony, even in instances when the law enforcement officer had time to get a warrant from the judge. The police officer has to have a probable cause to believe that the person is suspicious of having committed a crime. On the other hand, arrests for felonies in private places that as a rule are not public ones cannot be conducted without a warrant. The only exception is hot pursuit when the police chase a suspect that is trying to flee from a felony, as in case of Warden v. Hayden, 387 U.S. 294 [1967]. In addition, the Fourth Amendment allows for an arrest and subsequent search of a person who commits a misdemeanor in the presence of the law enforcement officer.

Warrantless Searches Incidental to a Lawful Arrest

In case an officer has arrested a person on a lawful foundation, either with a warrant of arrest or without it, he/ she is allowed to search thoroughly the suspected person, his/ her clothing, and any other stuff and area that are in the proximity of the suspect’s reach. The rationale behind searches that are incidental to a lawful arrest is that the police officers are capable of protecting themselves from concealed weapons that can be used against them. Nevertheless, they are restricted only to the areas, over which the suspect has immediate control.

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Search of Personal Vehicles

Police officers have the discretion to stop automobiles if they have a justified and reasonable suspicion that the driver of a vehicle has violated any traffic laws. First, the officer has to instruct the driver to pull the vehicle over to the roadside, and then he is allowed to conduct a search of the interior of the vehicle. While the glove compartment is allowed to be searched, the vehicle trunk is excluded, unless the police officer has a reasonable probable cause that the trunk contains any contraband or equipments to be used in a criminal activity. Just as with a warrantless search that is an exceptional case in the arrest practice, an officer has a lawful right to search the vehicle, inclusive of the trunk, and seize evidence.

In addition, police officers are authorized to open any container found in an automobile. To do this, they do not need a warrant or a probable cause. Florida v. Wells case, 495 U.S. 1 (1990) considered this right to be the discretion of the police, and be applied in cases when it is mandatory for the routine practice of the procedure.

Suspicion of an Impending or Committed Crime

In cases the police officer has reason to believe that a crime is about to be committed in public, he/ she is permitted to stop a person suspected of planning or having committed the crime in question. He is allowed to conduct a search of the suspect’s clothes, in order to find any weapons, which can be used by the suspect against the police officer.

An officer is authorized to demand identification, which the suspect has an obligation to show. Any refusal coupled with the attendant circumstances may give the officer a probable cause for arresting a person, as it was done in People v. Loudermilk case, 241 Cal. (1987). This procedure is also aimed at protecting the officer from any hidden weapons. However, things that are not weapons cannot be confiscated during this type of search even if they are the contraband items.

Exigent Circumstances

A warrantless search and a subsequent seizure can be also justified by some exigent circumstances. These circumstances justify a warrantless search. They allow entry into private premises, for instance, in case of the hot pursuit of a suspect, the possibility of inevitable destruction of evidence, or for protecting a person/ people from any danger.

Such exigent factors are determined by the Court after detailed examination and assessment of the incident integrally and deciding whether the police officer’s conduct was justified or not. This assessment considers the gravity of the offence that underlies the warrantless search or other factors, such as the suspect’s attempt to escape. The attendant circumstances must amount to the emergency level; gun shots, or screaming from a building, for example, are sufficient to conduct any search without a warrant.

Searches at Checkpoints

Warrantless searches are conducted at checkpoints that are fixed by the roadside, with the aim of policing the boarder. Such search was conducted for intercepting illegal migrants in the case of United States v. Martinez-Fuerte, 428 U.S. 543 [1976]. The Supreme Court upheld this decision. This type of search is also applicable for ensuring the road safety:, for example, detecting drunk drivers, as in the case of Michigan v. Sitz, 496 U.S 444 [1990].

These two types of checkpoint searches are constitutional, as they were used to correct certain mischief that could not be addressed effectively with the general procedures and means. On the other hand, when a checkpoint search is aimed merely at the detection of an ordinary crime, it can be declared a violation of the Fourth Amendment, as it was done by the Supreme Court in Indianapolis v. Edmond case, 531 U.S. 32 [2000].

Defective Warrants

If a search has been conducted in good faith by an officer pursuant to a warrant that appeared to be defective, the defective warrant may be justified. This happened, for instance, in the case of a warrant t that failed to meet all requirements in United States v. Leon, 468 U.S. 897 [1984]. On the basis of the Fourth Amendment, the Supreme Court decided that a defective warrant could be considered a reasonable one, as it was not a result of the police officer’s ill will or intention; in addition, it was issued by a magistrate. It was formulated as an exception to protect an innocent police officer who has acted within a warrant that is ostensibly valid.

Consent is the voluntary permission to comply with a request; it can be given by a person of sound mental capacity. In addition, the decision made should be free from any coercion or compulsion. Therefore, when an officer has a valid consent, he is allowed to search premises without a warrant or probable cause. Evidentiary materials discovered and seized during such searches are admissible in trial.

First, for consent to be valid, it has to be voluntarily given. Whether it is voluntary given or not is deduced from the attendant circumstances. The onus of proving that consent has been given without any duress or coercion is the duty of the prosecutor. Second, the consent should not hinge on the assertion of authority by the police officer to carry out the search, based on a warrant be it valid or not, as the Court decided in the case of Stoner v. California, 376 U.S. 483 (1964).

In case a police officer reasonably believes that a person is authorized to give consent to search premises without a search warrant, the search is not a violation of the Fourth Amendment rights of the true owner of the premises. As long as the police has reasons to believe that the person in question is the occupant, they are allowed to conduct a search, as in the case of Illinois v. Rodriguez, 497 U.S. 177 (1990). This situation is commonly referred to as a consent by a person with apparent authority. 

The Plain View Exception

The plain view exception is applicable when a police officer stays within a location legitimately and is in a position to gather evidence. For instance, when the officer has a search warrant for illegal game trophies and comes across a stash of counterfeit notes that are in his plain view, it is not prudent for him to leave and come back with another warrant as the evidence can be destroyed. However, if an officer stays in private premises illegally, he is not allowed to apply the plain view exception.

Warrantless Searches in Special Inquiries

Warrantless searches in special inquiries are a type of warrantless searches and subpoenas described in the Revised Code of Washington: The Special Inquiry Statute allows for a judge handling a special inquiry to look at the individual’s personal records in relation to a specific criminal case. This decision is made during a closed session. Such a judge has the mandate to subpoena witnesses, receive depositions, and handle the documents that are necessary to prove a criminal case.

The judge does not need a warrant for this type of evidentiary search. However, there is no generation of a public record. The key element in a special inquiry is anonymity; consequently, if there are no charges raised due to the evidence that is viewed, then the person whose records have been scrutinized does not need to be told that the inquiry ever happened.

Use of Electronic Gadgets

When the US Constitution was being framed, there was no possibility of electronic communications or digital storage of information. When the law enforcement officers began to intercept calls through wiretapping and obtain private information that lead to convictions, the question of how to deal with electronic data arose. It has to be decided on when such information is admissible  and whether wiretapping is alike to a search and seizure.

In the case of Katz v. United States 389 U.S. (1967), the petitioner was convicted with the charge of information wagering across the state lines via telephone. Evidence was gathered by the FBI agents, who had used listening and recording electronic devices. The Court of Appeal upheld the trial conviction stating that there was no physical entry to the petitioner’s occupied space, as the device was placed outside the telephone. The Supreme Court, on the other hand, reversed the decisions of the lower courts and held that the privacy belonged to an individual, and this privacy did not vanish when the settings were changed. It held that wherever a person was, he/ she was entitled to personal privacy and that this right would always be free from any unreasonable searches.

To protect the personal privacy envisioned in the Fourth Amendment, in the case of Silverman v. United States, 365 U.S. 505, 511. P. 353, it was held that the Amendment covers not only the search and seizure of tangible evidence, but also the recorded oral conversations. It has been upheld by the Supreme Court that technology was used as a substitution of common police surveillance. The question then was whether normal police surveillance had the authority to enter an area that is private with the intention of collecting evidence. It has been questioned whether it is lawful if the police set up surveillance cameras to ease their work. The Court then goes ahead and finds the evidence admissible and asserts that it is not a violation of the Fourth Amendment. This decision, however, has the dangers of diminishing the right to privacy as it allows the government to spy on its citizens.

After the terrorist attack of September 2011, a Congressional enactment of the USA Patriot Act that was supported by the President. It was created to widen the authority of federal agencies and police to gather information, in a bid to deal with the domestic terrorism. This Act gives a wide range of authority to the law enforcers to search electronic mail, conversations made via phones, and even financial and medical records without a warrant.

The USA Patriot Act also gave a broad leeway for the use of National Security Letters as administrative subpoenas. The document provided certain persons, who held personal records of others, with the authority to hand over these records when requested without search warrants. The subpoenas are issued even when there is no cause to believe that the person in under investigation.

Admissibility of Evidence Acquire by Warrantless Searches

The Evidence Act stipulates that admissible evidence is evidence that is permissible to be used at trial. Not all relevant evidence is admissible for supporting the existence of some facts. Evidence could be excluded for other reasons even if they are considered relevant.

In relation to the warrantless searches, the production and admissibility of evidence seized during the search fall under mandatory exclusion unless they are an exception. If evidence is illegally acquired, it cannot be admissible in court. It includes evidence that fall under the fruit of a poisonous tree doctrine; consequently, any evidence that is acquired through an illegal search and those gathered after the illegal search are excluded from evidence.

The mandatory exclusion rule is used as a defense in a criminal case, as a remedy for warrantless searches that are illegal and that infringe on a person’s right to privacy. If it is applicable, all illegally obtained evidence are excluded, as in the case of Mapp v. Ohio, 367 U.S. 643. 


Right to privacy should be upheld at all cost and regardless of whether one is in his/ her own private premises or in the public domain. A person and his/ her premises can be subjected to search only by an officer who has the authority to do so with a warrant. Arbitrary searches, seizure, and arrest are tantamount to the constitutional right of privacy.

On the other hand, it is imperative for law enforcement officers to carry out their duties, some of which can be executed only when they can search an individual without a warrant. Warrantless searches are, therefore, crucial if they are utilized lawfully in the fulfillment of their duties and to the interests of the public.


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