The Fourth and Fifth Amendments cont. — What is a warrant?
Part of Kheiro Magazine’s “Constitutions Series” introducing the U.S. Constitution
By Stuart H. Kluft, J.D.
WARRANTS AND THEIR EXCEPTIONS
In our last column, Part 2 of Encountering Law Enforcement, we covered the when, where and to whom the Fourth Amendment protects from an unreasonable search and/or seizure. Today, in our third installation on the Fourth and Fifth Amendments, we will cover what a warrant is, why law enforcement needs one to search or seize a person or their property, and some, but not all, of the situations where a warrant is not necessary.
What is a warrant
A warrant is a legal requirement imposed upon the government by the Fourth Amendment of the U.S. Constitution. Specifically, the Fourth Amendment states “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 being seized.”
Before getting into the context of the warrants clause, being able to recognize a warrant is paramount to knowing your rights and how to protect yourself. A warrant is a physical document signed by a judicial officer or other authorized person, such as a magistrate judge, stating that probable cause has been established, through an oath or affirmation by law enforcement or another government agent, to search, arrest, seize or transport a person or property incident to the administration of justice.
In other words, it is a paper (or stack of papers) entitled “search” or “arrest” — or whatever action law enforcement deems necessary — that specifically describes the person, property, or location that the government believes must be searched or seized in order to promote the furtherance of justice. They are typically issued in connection to a criminal investigation or other judicial procedure — i.e. when a person has ignored a lawful subpoena to appear in court — or to collect taxes among, other lawful reasons.
There are different types of warrants, such as arrest warrants, search warrants, and bench warrants, but every type of warrant grants the government the same thing: the ability to search or seize an individual or their property in situations that otherwise would be prevented by the Fourth Amendment.
For example, if the police believe Robin Banks was involved in last week’s robbery of the local credit union, the police cannot simply walk into Robin’s house and arrest her on a mere suspicion. This is because the Fourth Amendment guarantees the right to anyone found in the United States to be secure in their person, house and property from any government intrusion. However, if the police really believe Robin was involved in that robbery, then they may be able to secure a warrant for her arrest and/or a warrant to search her property for evidence of the crime. This means the government agent must go to a judicial officer, swear under oath or affirmation that they believe there is probable cause that Robin was involved in that crime, and present the reasons for that belief. If the judicial officer is convinced, he or she will sign a warrant allowing the police to arrest and/or search Robin and her property in the interest of justice.
It is important to note that probable cause is a relatively low standard. In the context of arrest and search warrants, a judicial officer only has to consider whether it is likely that the person or thing to be searched or seized was involved in a crime based on the evidence presented. This is a much lower standard than in a criminal trial, where it must be proven ‘beyond a reasonable doubt’ that the person was actually involved in the crime. Thus, warrants are issued fairly regularly when they are sought by law enforcement.
Exceptions to the warrant requirement
As you may be aware, law enforcement agents do not always need a warrant before they can lawfully stop, search or arrest a person. This is because there are certain exceptions to the warrant requirement.
One is the hot pursuit exception. This exception allows a government agent to enter a home or other property if they are actively pursuing a dangerous criminal at or very near the time that a crime has taken place. Imagine the police arrived at the credit union that Robin Banks was suspected of robbing. If the police arrived and found Robin there, holding up the bank, followed her while she escaped out the back, and then followed her into an unsuspecting residence, the police would be allowed through the hot pursuit exception to enter that home without needing to secure a warrant prior. Normally that entry would violate the homeowner’s right to be secure in his own home, but since police were in the middle of pursuing a suspect, the entry is not considered unreasonable.
The hot pursuit exception is only one of several warrant exceptions. Many exceptions are based on two key justifications, (1) the safety of officers and/or the public, and (2) to prevent the destruction of evidence. These exceptions include Hot Pursuit, Destruction of Evidence, Emergency Aid and Plain View, all of which are limited to the specific person or item of property the law enforcement agent is engaged in searching or seizing.
These exceptions are straightforward. Law enforcement can enter an otherwise protected area if they observe through their senses — including sight, hearing or sense of smell — that evidence of a crime is clearly apparent or about to be disposed of. For example, if a police officer can hear through a window someone say, “Quick flush the bindles (slang for small drug packets typically carrying cocaine or other powder narcotics) down the toilet!” as an attempt to flush drugs down the toilet, this would give the officer probable cause to enter the home without a warrant in order to prevent the destruction of evidence.
Generally if evidence of a crime is in plain view of an officer, such that it ‘announces its criminality’ whether through sight, smell, touch or any other sense, and that officer is in a location where they lawfully may be, then that property and person tied to it may be seized without a warrant. The same concept applies for when an officer is rendering emergency aid. In this scenario, an officer may enter a home if (s)he is being hailed into to render aid. If in the event of rendering such aid (s)he happens upon incriminating evidence such as drugs, illegal weapons, or evidence of a different crime, that evidence can be seized lawfully even without a warrant.
Other search exceptions that are not related to safety and disposal of evidence are generally the consequences of other lawful actions. These exceptions include: consent to be searched, searches incident to arrest, the automobile exception, checkpoints, probation and parole searches. In these scenarios, the person has either voluntarily through their own actions or implicitly through circumstances such as parole, waived their right to prevent a search under the Fourth Amendment.
The most well-known exceptions involving consent are voluntary consent, searches incident to arrest, and probation and parole searches. A law enforcement agent does not need a warrant to search a person or property if the person tied to it gives consent to that search, whether explicit or implicit. This is because it is no longer an unreasonable search once given permission by the affected party to do so.
If you are not already under arrest or subject to the terms of probation or parole — arrest, parole, and probation automatically waive your right to refuse a search — it is important to understand that you never need to give consent to a search if asked by a law enforcement agent, even if you believe you have nothing to hide. For example, imagine you own a car that your child drives every once in a while. You believe that your child abides by all the laws when driving your car. However, unbeknownst to you, your child’s friend stashed drugs in a rear passenger door, and you never noticed the drugs or had reason to believe they were there. If after being pulled over you consent to a search of your vehicle, it is likely the officer will find these drugs, and you may be placed under arrest for possession or even distribution of narcotics.
The other two exceptions are the automobile exception and checkpoints. These exceptions are complicated and apply differently according to the situation. However, generally because we enjoy a lower standard of privacy in our vehicles compared to our homes it is easier for an officer to find probable cause to conduct a search of a vehicle and its occupants than he would otherwise. This is because vehicles are heavily regulated, are transparent thanks to their having windows on all sides, and travel on public roads. Furthermore, vehicles are mobile, which means they carry a higher risk of destruction of evidence. Thus, the main takeaway is that if you are in a vehicle, a judge is much more likely to consider a warrantless search of the car and its occupants to be reasonable — and thus not unconstitutional — as opposed to if you were in your home or at another private property.
Ultimately, the Fourth Amendment was drafted to offer various protections, however it was left ambiguous and broad by stating that only unreasonable searches and seizures will be protected. Over the last 200-plus years of Supreme Court and lower court decisions, the law has changed in what it deems “reasonable,” and this standard will continue to change as our society progresses. Thus, what is an exception today may not be tomorrow, and what is protected today may become an exception tomorrow.
Make sure to come back for the next column in the Constitutions Series, where we will cover Miranda Rights under the Fifth Amendment, and explain how to understand and exercise these rights if you ever find yourself needing to do so.
NOTE: The views expressed here do not represent the opinion, statements, or positions of Kheiro Magazine. This information is not legal advice, nor IS IT intended to be legal advice; it is solely designed to provide helpful information on the subjects discussed. Kheiro Magazine has made every attempt to ensure the accuracy of the information provided herein, however it is not a substitute for actual legal advice. If you find yourself in legal trouble contact an attorney immediately. Further, readers should be aware that the law changes and what is contained here today might not be true tomorrow. As such, these statements are only held out to be accurate as of the date of publishing.
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