A big part of knowing your rights is knowing when law enforcement can or can’t enter your property – home or car, search your person or your property, arrest you, or even just forcibly take you to court. Protected by the Fourth Amendment, police must have a certain type of warrant for each of these acts. To do so, there is a process that must be followed, which requires specific evidence or reasoning behind obtaining a warrant. It’s important to be aware of what types of warrants are out there, how your rights are being protected, and what will cause a warrant to be taken out against you.
What is a Warrant?
A warrant is simply a court order, signed by a judge, that will most likely result in one of three things: your person or your property being searched; your arrest; or you being ordered to come before the court. These would require a search warrant, an arrest warrant, and a bench warrant, respectively. It also gives power into the hands of law enforcement in order to carry out the act of the warrant, usually to seize your property or yourself. They are, however, heavily regulated by the constitution, specifically the Fourth Amendment.
The Fourth Amendment
Even in a case where a warrant has been extended, you still have rights, so it’s important to know where that protection comes from and in what ways it covers you.
The Fourth Amendment establishes that:
“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.”United States Constitution
In simple terms, this just means that law enforcement must have a warrant in order to have your property searched or seized, and that the warrant must be accompanied with a valid reasoning on why that search is necessary. This includes yourself, as you can be “seized” and arrested or brought before the court. This covers three different types of warrants: arrest warrants; search warrants; and bench warrants.
An arrest warrant is an order put out for your immediate arrest. This is often done in cases where the suspect is not caught in the act of the crime, and they have to be taken into custody. Requiring certain criteria to be met in order to obtain, courtesy of those protections in the Fourth Amendment, arrest warrants are only served when there’s reasonable suspicion that you are the offender in a crime.
Some of the most common cases these warrants are used in include:
- Breaking and Entering
- Grand Theft Auto
- Outstanding Payment
Most of the time, the warrant will include certain information for the suspect, such as the reason for arrest, whether they can be released on bail, and how much their bail is set at. It may also stipulate certain aspects of the arrest, such as during what hours of the day it can occur.
When there’s a warrant out for your arrest, you could be arrested any time the officer identifies you, whether you’re committing a crime or not. However, sometimes people can be hard to find, especially if they’re aware of a warrant out for them, and there are many arrest warrants that never fulfill their goal.
Process of Obtaining an Arrest Warrant
The process will usually begin with reasonable proof that the suspect was involved in criminal activity, signed under threat of perjury, which is submitted to a judge for review. It comes in the form of an official document called an affidavit swearing that they know the crime and suspect they’re identifying to be true. This must contain completely objective evidence that it was specifically the suspect that committed the crime. They don’t need to necessarily prove that you are the one that did it – that’s what a fair trial is for. But they do have to prove reasonable suspicion that you did something illegal.
One of the rights that your arrest warrant may state is when and where you can be arrested. If not specified, it’s anywhere and anytime, but if there are restrictions, it is your right to not be taken into custody during those times. This could result in the arrest being unlawful, possibly ruining an entire case.
It could also give special powers to police officers that may diminish your rights, such as being able to enter your property without consent. Again, though, this should be outlined in the warrant itself.
Depending on your state, you can check to see if there is a warrant out against you; however, other than that, there is no notification that an arrest warrant has been put out in your name.
In cases where an arrest has been made because of outstanding payments of tickets and fines, it may be within your rights to pay off those balances and be released. However, this is usually only with smaller cases, and generally not any felonies.
Obviously police aren’t going to be able to find every single person there is an arrest warrant out for, so there are quite a few warrants out there that have been open for years at a time, never to be brought in. These are called outstanding warrants, and there’s no telling how many there are in the U.S. right now. They are still, however, valid; those with outstanding warrants could be brought in at any time. They’re typically the result of a suspect not knowing of the warrant, their evasion of a warrant, or simply because it simply hasn’t been done yet. Felony warrants don’t usually expire, while misdemeanor warrants sometimes do.
There are ways in most states to check and see if you have any outstanding warrants under your name. You’ll have to do some research about your specific county to do so, though, because everyone does it differently, or may not even offer it at all. Before paying for one of the many sites that claim they’ll search through public records for you – who knows how accurate those are – be sure to exhaust all outlets, including calling your local court, clerk of court, or county clerk. They should, however, have some list of warrants out on their website at the very least. You’ll have to contact the federal court for any information about federal crimes.
A search warrant is an order put out by a judge giving permission to law enforcement to search a specified piece of your property to look for specific items or evidence of a crime. The Fourth Amendment also establishes this right, ensuring that search and seizures cannot occur without a warrant or consent, and that there are boundaries to how far police can go when looking for something.
Process of Obtaining a Search Warrant
This process is quite similar to the way an arrest warrant comes to be issued. This also requires an affidavit showing probable cause that there may be illegal items or proof of a crime at a certain location. An essential piece to this process is explaining exactly what is being searched for with the evidence they have that those items may be found in that location.
An important case that established a lot of these guidelines for obtaining search warrants is Coolidge v. New Hampshire. This case established a few rules:
- The judge issuing the warrant must be a “neutral and detached magistrate.”
- Subject to a few exceptions, searches done without the consent of the law (a search warrant) cannot be considered justified searches.
- One of these exceptions, incidental searches, must occur when the arrest is made.
- Property can only be seized without a warrant when it’s in plain view.
- Seizure is lawful and justified when given without coercion.
Where They Can Search
Like an arrest warrant, this can also come with the judge providing certain times and places where the search can occur. Additionally, the warrant is going to provide information on exactly what property is allowed to be searched. Property can be defined as documents, books, papers, or other tangible pieces of evidence. As far as specific places that they can search, it will usually include your own person, or your home, car, or place of business.
There are points when the exact location of the search becomes a little flexible, however. One of these instances is when the reasonableness requirement is fulfilled. These are times when the warrant’s specifications are more ambiguous, and the law enforcement officers may sometimes have to make interpretation on what it may be referring to. This does have to stand up in court, however, that the interpretation was reasonable, and the warrant did not provide information prohibiting that assumption. The precedent for this test is established by Maryland v. Garrison, where a warrant allowed for a search of “the premises known as 2036 Park Avenue third floor apartment.” Officers took this to refer to both apartments on the third floor of this apartment complex, which was deemed a reasonable extension of the warrant, considering there were no specifications on which apartment. In this other apartment, they also found illegal contraband, which resulted in a charge for possession of a controlled substance for the resident of this apartment.
While it also requires a warrant, today’s age calls for a need for electronic devices to be searched. Rule 41 of the Federal Rules of Criminal Procedure outlines that evidence may be copied from electronic storage and saved to go through even after the search of persons or property has been completed. The copying must be made during this search, however.
This rule also allows for tracking devices to be planted on suspects, with a warrant. It must specify who or what will be tracked, which judge it will be turned in to, and how long the device will be used.
There are exceptions to most rules, and this is one that has quite a few. These exceptions generally cover times when a warrant cannot be obtained, but it is within the safety of the public or the officer that a search take place. However, it is usually going to be required that the exception be fully and clearly proven in court for any evidence found or arrests made to be held valid.
Sometimes called reasonable suspicion, this is an instance where a law enforcement officer feels there’s most likely evidence of a crime or dangerous items on a person or in their property. There must be a valid reason why a search needs to occur at that moment. Most of the time it’s in regards to the fact that there are dangerous materials that need to be confiscated, or that there would be ample time for the suspect to hide evidence that the officer finds is probable to be there.
If an officer searches your items without a warrant, be sure to question what their probable cause is. It is within your rights to have this explained to you, and it will have to stand up in court for any convictions to be made or even evidence to be show in court. If there is no probable cause and you have not given your consent, they are not able to legally search your property.
As it sounds, this covers law enforcement in the incident that there is obviously a crime occurring, such as hearing screams of someone being assaulted or chasing a suspect into a home. They do not have to obtain a warrant before entering property in such circumstances. It must be proven that it was unsafe or unreasonable for the officer to first obtain a warrant.
In 1925, the Supreme Court established in Carroll v. United States that an automobile must also have a warrant to be able to search. However, a point when it doesn’t require a warrant is if it is apparent that the evidence may be removed from the property. It needed to be established because of the fact that automobiles and other vehicles can be transported quickly, unlike property like a home or business. Basically, like all the other exceptions, this requires the cop to believe that waiting for a warrant would result in losing proof of contraband or another crime.
Incidental searches occur directly after an arrest. It provides officers with the ability to search property that is in obvious connection with a crime. However, this must be done during the arrest process, as it’s not something where an officer can leave the scene, and then come back and search.
Another exception is the Plain View Doctrine, which allows an officer to seize illegal property that is within their view. That means if something like marijuana is sitting visibly on your coffee table when you answer the door to police, you could be arrested for possession, and they may have reason to search the rest of your house. If it’s hidden, however, and there’s no probable cause, you cannot be searched. It can also happen during a pat-down, so police feeling an illegal weapon on you and pressing charges doesn’t require a warrant.
The Fourth Amendment sets your rights so that: a warrant accompanied with probable cause is required to make a search; an officer must be under oath when claiming probable cause; the items to be seized and locations to be searched are defined; and the warrant is signed by a fair judge.
You are also extended rights to have a fair expectation of privacy and rights in places that are generally deemed to be private places, such as a restroom. Police must also knock and announce their arrival before just coming into your property; however, this isn’t required if it would be dangerous to announce their presence or it would ruin the ability to collect contraband or other evidence. Searches usually must occur during daytime, which is generally defined as 6 am to 10 pm. Following the search, you should be given a receipt of what was seized, and you have the right to receive back property they may have taken, as long as it isn’t contraband. This usually is accompanied with returning the warrant to the judge with a complete inventory – that you also have the right to obtain – and details about the search.
Additionally, it is within your rights for all evidence obtained during an unlawful search to be unusable in court, something called the exclusionary rule. This also dismisses any evidence that was found as a result of discovering something in that initial, unlawful search.
A bench warrant usually occurs when someone is held in contempt of court, which typically means they failed to appear for a court date, they didn’t show up for jury duty, didn’t pay a fine or child support, violated probation, or failed to comply with any conditions of probation or bail. This allows a police officer to locate the suspect and bring them to court. They will then be on trial for contempt of court where they will provide a defense. This is usually going to be some valid reason for violating terms or failure to appear.
Process of Obtaining a Bench Warrant
Whereas the other two typically begin with law enforcement approaching a judge, this comes from the judge themselves. They will cite the reason that the suspect is in contempt of court and serve the warrant. This process is much more simple, as these are facts that don’t require much to prove.
These are pretty cut and dry terms, so if you’ve been served, you only have a few options. Discussing with a lawyer is probably your best bet, but it may be possible for you to make an arrangement before an arrest occurs. You may be able to turn yourself in or attend an arraignment. Other than that, there isn’t a whole lot for the Fourth Amendment to protect here.
Warrants, though usually a negative thing to happen, are actually an excellent representation of the rights afforded to you through the Fourth Amendment. Their correct usage allows you to have privacy over your property and probable cause before decisions or arrests are made, two rights that can make all the difference in your case.