Understanding Basics of the Search Warrant Process

Police generally require a warrant to conduct a search of a person, place, or item of personal property. Examples of personal property include a digital device (phone, computer, tablet), closed container, and more. The warrant requirement is contained in the 4th Amendment to the United States Constitution. A similar warrant requirement is contained in many state constitutions. While there are certain exceptions that authorize warrantless searches, this article is designed to promote a basic understanding of the search warrant process.

The Four-Step Search Warrant Process

The search warrant process involves four steps:

• (1) applying for the warrant
• (2) granting the warrant
• (3) executing the warrant
• (4) returning the warrant to the court that authorized it

Step 1: Warrant Application.

Police apply for a search warrant by submitting a written application or affidavit under oath, to a judicial officer (judge or magistrate) authorized to issue warrants. An officer who applies for a warrant by application is referred to as the applicant and an officer who applies for a warrant by affidavit is called the affiant.

The application or affidavit must be signed under oath and contain facts and details known to police, which establish probable cause to believe that evidence of a crime is reasonably expected to be found in the place sought to be searched.

The warrant application is not required to contain all information known to police. The only requirement is that the facts establish probable cause, which is the legal standard that must be met in order for a search warrant to be authorized.

The applications must describe the types of evidence sought after, and the places to be searched. Warrant applications are most often made in writing, but under exigent circumstances, may be made by police orally by phone or in person to a judge or magistrate.

Step 2: Obtaining the Warrant.

Police must obtain a signed warrant from a judge or magistrate legally authorized to approve and issue them. A warrant should only be issued if, after careful review of the application, the judicial offer is satisfied there is probable cause to believe evidence of a crime will be found in the place or thing to be searched. The warrant must describe with particularly the persons or places to be searched, and the items to be seized.

The warrant must also contain a time limit as to when the search must be conducted. All search warrants have a term of expiration, such that if they are not executed before they expire, police must apply for a new warrant. Search warrants must traditionally be executed during daylight hours unless the approving judicial officer approves execution at night.

Warrants also traditionally require police to knock and announce their presence before forcing their way into a home or place to be searched. However, some warrants authorize execution with no knock and announcement with prior approval from the judicial officer.

While most warrants are in writing, under exigent circumstances, police may obtain verbal permission to search from a judicial officer authorized to approve search warrants.

Step 3: Warrant Execution

This step refers to police visiting the person and/or place to be searched, and conducting the search for the items to be seized, subject to the limitations the warrant. As stated above, limitations include place(s) to be searched, items to be seized, whether the warrant must be executing during daylight, or may be executed at night, and whether police must knock and announce their presence before entering a premises to conduct a search.

Police may detain persons present at the time of a search warrant execution. They may detain the persons in place, or remove them from the premises during the search. When executing a warrant, police may search the place(s) described in the warrant, and all containers or places contained therein, where the items to be seized may reasonably be found.

Though police must have a warrant before conducting a search, they are not legally required to provide owners or occupants of the premises with a copy of the warrant. While furnishing a copy of the warrant is the more professional and preferred practice, such is not legally required.

Step 4: Warrant Return

Police must file a written warrant return with the authorizing court within a reasonable time period after a search, or within a statutorily prescribed time period. A warrant return documents the time and date when the warrant was executed, and provides detailed list or inventory of the items seized, which police have in their possession and are holding as evidence.

The Importance of Understanding Search Warrants

The search warrant process is fundamental to criminal investigations. Warrants are frequently used as a tool to search for and collect evidence that is later used to support criminal prosecutions. If you are charged with a crime, based upon physical evidence obtained from the search warrant process, you need a criminal defense lawyer who is experienced with challenging search warrants. Call Providence RI Criminal Defense Lawyer, John L. Calcagni III, today for a free consultation at (401) 351-5100.