View source for Search warrant

{{short description|Type of court order}}
{{Multiple issues|
{{More citations needed|date=November 2008}}
{{globalize|date=January 2015}}
}}

A '''search warrant''' is a [[court order]] that a [[magistrate]] or [[judge]] issues to authorize [[Police|law enforcement]] officers to conduct a [[Search and seizure|search]] of a person, location, or vehicle for [[evidence]] of a [[crime]] and to [[Confiscation|confiscate]] any evidence they find.  In most countries, a search warrant cannot be issued in aid of civil process.

Jurisdictions that respect the [[rule of law]] and a right to privacy constrain police powers, and typically require search [[warrant (law)|warrant]]s or an equivalent procedure for searches police conducted in the course of a [[criminal investigation]]. The laws usually make an exception for [[hot pursuit]]: a [[police officer]] following a criminal who has fled the scene of a crime has the right to enter a property where the criminal has sought shelter. The necessity for a search warrant and its abilities vary from country to country. In certain [[authoritarian]] nations, police officers may be allowed to search individuals and property without having to obtain [[court]] permission or provide justification for their actions.

==United Kingdom==
In [[England and Wales]], a local [[Magistrate#United Kingdom|magistrate]] issues search warrants, which require that a [[constable]] provide evidence that supports the warrant application.

Under Section 18(5)a of  [[Police and Criminal Evidence Act 1984]], a constable can conduct a search immediately without an inspector's authorisation. This subsection allows a constable to search the home of a suspect(s) under arrest in their presence before they take the suspect to a police station (or other custody location). Under Section 32 of [[Police and Criminal Evidence Act 1984]], a constable who arrests a person who is on their own property or has just left their premises, may immediately search both the suspect and the immediate area.

In [[Scotland]], a country operating on the distinct legal system of [[Scots law]] compared to England and Wales – the restrictions governing the use and execution of search warrants are set out under Part XIII under the Criminal Procedure (Scotland) Act 1995. Search warrants must be signed by a [[Sheriff (Scotland)|Sheriff]] after a petition from police.<ref>{{Cite web|url=http://www.legislation.gov.uk/ukpga/1995/46/section/296|title=Criminal Procedure (Scotland) Act 1995|website=legislation.gov.uk|publisher=National Archives}}</ref>

Gas company officials may enter a home to inspect, repair, or replace [[gas meter]]s by obtaining a warrant.<ref>{{cite news|author=Farin|title=Breaking and metering|url=http://www.bbc.co.uk/blogs/watchdog/2010/04/breaking_and_metering.html|access-date=27 October 2012|newspaper=BBC Watchdog|date=29 April 2010|quote=British Gas are legally entitled to enter anyone's home if the householder hasn't paid the bill and won't let them in, but they need a warrant from a magistrate, who must be satisfied the information British Gas shows them is correct. In most cases, British Gas also must have issued a prior warning.}}</ref>{{dl|date=December 2024}}

==Canada==
To get a warrant, police must present a judge with an ITO (information to obtain) form that contains reasonable and probable grounds to believe an offence has been or is being committed and that the authorization sought will afford evidence of that offence. This hearing is {{Lang|ln|ex parte}}, meaning only the crown is present. This fact obliges the police to include any known facts that hurt their application.<ref>R. ''v.'' Araujo, [2000] 2 SCR 992, [http://canlii.ca/t/5231 2000 SCC 65 (CanLII)], at para. 46.</ref><ref>{{cite web|last1=Faloney|first1=Bernard|title=Rules of Evidence|url=http://freelegalhelp.ca/evidence.html#toWarrants|website=freelegalhelp.ca|access-date=11 September 2017}}</ref>

After a search the occupants have a copy of the warrant and may get hold of the ITO through crown disclosure<ref>{{cite web|last1=Faloney|first1=Bernard|title=Criminal Procedure|url=http://freelegalhelp.ca/procedure.html|website=freelegalhelp.ca|access-date=11 September 2017}}</ref> if the occupant(s) are charged. There are numerous different warrant procedures in the [[Criminal Code (Canada)|Criminal Code]], some have specific requirements such as being served during daytime or having a named supervising officer present in the case of a home search.<ref>R. ''v.'' Genest, [1989] 1 SCR 59, [http://canlii.ca/t/1ft8 1989 CanLII 109 (SCC)].</ref> If these (see link)<ref>[http://freelegalhelp.ca/evidence.html#toWarrants Canada search warrant & ITO requirements]</ref> requirements are not met by the police the evidence found may become inadmissible against the accused at trial.


==India==
Under section 93 of IPC, a search warrant can be issued by a court if: <br>
(1) (a) Where any Court has reason to believe that a person to whom a summons order under section 91 or a requisition under 
sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or <br>
(b) where such document or thing is not known to the Court to be in the possession of any person, or <br>
(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.<br>
(2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.<br>
(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.<ref>[https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22470&sectionno=93&orderno=103  "India code - When a search warrant can be issued, retrieved July 23 2022]</ref>

==United States==
[[File:Request for Search Warrant - NARA - 285161.tif|thumb|right|220px|Request for a search warrant dated December 11, 1905]]

Under the [[Fourth Amendment to the United States Constitution]], most police searches require a search warrant based on [[probable cause]].<ref name=":0">{{Cite web |title=Probable Cause |url=https://www.law.cornell.edu/wex/probable_cause |access-date=2022-03-20 |website=LII / Legal Information Institute |language=en}}</ref> The absence of valid consent or an exception to the warrant requirement  (whether for purposes of effecting a search or an arrest) normally requires a warrant for police entry in an individual's home.<ref name=":0" /> The probable cause standard for obtaining a search warrant is lower than the [[Legal burden of proof|quantum of proof]] required for a later criminal conviction, which requires [[Reasonable doubt|proof beyond a reasonable doubt]].<ref>{{Cite web |title=Burden of Proof |url=https://www.law.cornell.edu/wex/burden_of_proof |access-date=2022-03-20 |website=LII / Legal Information Institute |language=en}}</ref>

Under the Fourth Amendment, search warrants must be reasonable and particular.<ref name=":0" /><ref>{{Cite web |title=Particularity Requirement |url=https://www.law.cornell.edu/constitution-conan/amendment-4/particularity-requirement |access-date=2022-03-21 |website=LII / Legal Information Institute |language=en}}</ref> This means that a search warrant must reasonably identify the items to be searched for and the place where law enforcement officials are authorized to search for those items. Unless an exception to the warrant requirement applies, the search of other buildings or areas of a building, persons or vehicles, or the search for additional items that do not reasonably fall under the original warrant, will normally require additional search warrants.

To obtain a search warrant, an officer must prove to a [[United States magistrate judge|magistrate]] or [[United States judge|judge]] that probable cause exists for the proposed search, based upon direct information (i.e., the officer's personal observation) or other reliable information. An application for a search warrant will often rely upon [[Hearsay in United States law|hearsay information]], such as information obtained from a confidential [[informant]], as long as probable cause exists based on the [[totality of the circumstances]]. Police can seize both property and persons under a search warrant.  The rationale is that evidence police collect without a search warrant may not be sufficient to convict, but may be sufficient to suggest that a warrant would allow police to find enough evidence to convict.

The issue of federal warrants is determined under [[Title 18 of the United States Code]]. The law has been restated and extended under Rule 41 of the [[Federal Rules of Criminal Procedure]].<ref>{{cite web|title=Federal Rules of Criminal Procedure, Rule 41. Search and Seizure|url=https://www.law.cornell.edu/rules/frcrmp/rule_41|website=Legal Information Institute|date=30 November 2011 |publisher=Cornell Law School|access-date=11 September 2017}}</ref> Federal search warrants may be prepared on Form AO 93, Search and Seizure Warrant.<ref>[http://www.uscourts.gov/forms/AO093.pdf AO 93 (Rev. 12/09) Search and Seizure Warrant] {{Webarchive|url=https://web.archive.org/web/20100407223833/http://www.uscourts.gov/forms/AO093.pdf |date=2010-04-07 }}. Uscourts.gov.</ref> Although the laws are broadly similar, each state has its own laws and rules of procedure governing the issuance of warrants.

Search warrants are normally available to the public.  On the other hand, they may be [[sealed search warrant|sealed]] if they contain sensitive information.<ref>[https://multimedia.journalism.berkeley.edu/tutorials/police-records/  Paul Grabowicz, "Tutorial: Police Records" UC Berkeley Graduate School of Journalism – Advanced Media Institute, 2014]</ref>

===Exceptions===
{{main|Warrantless searches in the United States}}

Certain searches do not require a search warrant. For example,

* '''Consent''': a warrant is not required when a person in control of the object or property gives [[consent]] for the search.
* '''[[Hot pursuit]]''' of a [[felony|felon]] (to prevent a felon's escape or ability to harm others);
* '''Imminent [[Spoliation of evidence|destruction of evidence]]''': where evidence might be destroyed before a warrant can be properly obtained;
* '''Emergency searches''': such as when someone is heard screaming, yelling, or calling for help inside a dwelling; or
*'''Search incident to arrest''' (to mitigate the risk of harm to the arresting officers specifically).<ref>[{{SCOTUS URL|oral_arguments/argument_transcripts/02-811.pdf}} ''Groh v. Ramirez'', 540 U.S. 551, 564–65 (2004)]</ref>
* '''Public safety''': a warrantless search may be permissible in an emergency situation where the public is in danger.
* [[plain view doctrine|'''Plain view''']]''':''' evidence is in the plain view of law enforcement officers, from a lawful vantage point (with similar exceptions that include plain smell, where the officer detects an odor that clearly indicates the presence of contraband or criminal activity).

In a plain view case, the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately obvious that the evidence is contraband. The plain view rule applies, for example, when the officer has pulled the suspect over for a seat belt violation and sees a [[syringe]] on the passenger seat.<ref name="Findlaw1">{{cite web|title=Fourth Amendment: Annotation Four|url=http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html|work=Annotations to the Fourth Amendment|publisher=FindLaw|access-date=29 April 2013}}</ref>

====Protective sweep====
If the subject is arrested in a home or vehicle, police may perform a protective search to make sure that there are no weapons within the vicinity.<ref>{{cite journal|last1=Joseph|first1=Paul R.|title=The Protective Sweep Doctrine: Protecting Arresting Officers from Attack by Persons Other Than the Arrestee|journal=Catholic University Law Review|date=1983|volume=33|page=95|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/cathu33&div=9&id=&page=|access-date=11 September 2017}}</ref> For example, they may search for weapons in the room where they arrested the subject of a warrant, and conduct a "protective sweep" of the premises if they reasonably suspect that other individuals may be hiding.

====Rental properties and hotel rooms====
With rented property, a [[landlord]] may refuse to allow law enforcement to search a tenant's apartment without a search warrant, and police must obtain a warrant under the same guidelines as if the tenant were the owner of the property.<ref>{{cite journal|title=Landlords, Tenants, and Police Civil Liability|journal=AELE Monthly Law Journal|date=June 2009|volume=101|issue=6|page=101|url=http://www.aele.org/law/2009all06/2009-06MLJ101.pdf|access-date=11 September 2017}}</ref>

People who are occupying rooms at hotels or motels have a reasonable expectation of privacy in their rooms. However, a warrantless search may be possible if the hotel guest has property in their room a considerable period of time after the scheduled check-out time.<ref>{{cite journal|last1=Miller|first1=Jason C.|title=Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms|journal=Seton Hall Circuit Review|date=2010|volume=7|page=269|url=http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1048&context=circuit_review|access-date=11 September 2017}}</ref>

====Motor vehicle exception====
As first established by ''[[Carroll v. United States]]'' (1925), police are allowed to [[automobile exception|search a vehicle without a search warrant]] when they have probable cause to believe that [[evidence]] or [[contraband]] is located in a vehicle.<ref>Regini, L. A. (July 1999). "The Motor Vehicle Exception: When and Where to Search." ''[[FBI Law Enforcement Bulletin]]''. 68, 27–33.</ref><ref>Hendrie, E. (August 2005). "[https://www.fbi.gov/publications/leb/2005/august2005/august05leb.htm#page22 The Motor Vehicle Exception]." ''FBI Law Enforcement Bulletin'', 74.</ref> When police arrest an individual shortly after the individual has exited a vehicle, the police may conduct a full search of the suspect's person, any area within that person's immediate reach, and the passenger compartment of the recently occupied vehicle for weapons or any other contraband. However, ''[[Arizona v. Gant]]'' (2009) limits such searches to circumstances where the arrested person could have accessed the vehicle, or when the vehicle could contain evidence of the crime the person is arrested for.<ref>{{cite web|title=Arizona v. Gant, 556 US 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)|url=https://scholar.google.com/scholar_case?case=16930540025490515536|website=Google Scholar|access-date=11 September 2017}}</ref> As per ''[[Collins v. Virginia]]'' (2018), the exception does not apply when the vehicle is within the home or [[curtilage]] of the home of its owner.

====Border search exception====
{{main|Border search exception}}
Under [[Border search exception|The Border Search Exception]] custom and immigration officers are not required to have a warrant or [[probable cause]] to conduct [[Search and seizure|searches and seizures]] at [[Borders of the United States|international borders]] and their functional equivalents.<ref>{{cite journal|last1=Coletta|first1=Christine A.|title=Laptop searches at the United States borders and the border search exception to the fourth amendment|journal=Boston College Law Review|date=2007|volume=48|page=971}}</ref>

This doctrine is not actually an exception to the [[Fourth Amendment to the United States Constitution|Fourth Amendment]], but rather to the Amendment's requirement for a warrant or probable cause. Balanced against the sovereign's interests at the border are the Fourth Amendment rights of entrants. Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border. This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the [[Fourth Amendment to the United States Constitution|Fourth Amendment]]'s [[proscription]] against "unreasonable searches and seizures".

===Delayed notice===
A [[sneak and peek warrant|sneak and peek search warrant]] (officially called a delayed notice warrant and also a covert entry search warrant or a surreptitious entry search warrant) is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner's or the occupant's permission or knowledge and to clandestinely search the premises.

===Gag orders===
In California, the California Electronic Communications Privacy Act mandates that in certain cases concerning electronic search warrants that the court issue [[gag order]]s "[...] prohibiting any party providing information from notifying any other party that information has been sought [...]".<ref>See the California Electronic Communications Privacy Act, Sec. 1, codified at {{cite web|title=California Penal Code, Sec. 1546.2.|url=https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1546.2.|website=California Legislative Information|publisher=California State Legislature|access-date=11 September 2017}} ("(b)(1) When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order [....]")</ref>

==See also==
{{div col}}
*[[Arrest warrant]]
*[[National Security Letter]]
*[[No-knock warrant]], to enter a property without occupant notification
*[[Parallel construction]] – the untruthful description of the origins of evidence, to avoid laws about search or otherwise
*[[Police]]
*[[SWAT]] - SWAT Teams can raid homes with a search warrant
*[[Reverse search warrant]]
*[[Sneak and peek warrant]], to clandestinely look inside a property
*[[Search and seizure]]
*[[Sugar bowl (legal maxim)]]
*[[Writ of Assistance]]
{{div col end}}

== Notes and references ==
{{reflist}}

{{Criminal procedure}}
{{Privacy}}
{{Portal bar|Law}}

{{authority control}}

{{DEFAULTSORT:Search Warrant}}
[[Category:Warrants]]
[[Category:Law enforcement terminology]]
[[Category:Searches and seizures]]