In the United States, searches and seizure of property are not left to the whim of law enforcement officers. The Fourth Amendment of the U.S. Constitution prohibits unreasonable search and seizure, and state laws provide guidelines for what must be done to ensure that searches are reasonable. Although the specifics vary among states, the general rule is pretty much the same throughout the country, requiring a showing of probable cause.
Applying for a Search Warrant
Although police departments might like it if they could issue their own search warrants, this is not the type of reasonable search the Constitution mandates. The Supreme Court has ruled that, in order to satisfy the Fourth Amendment dictates, a search warrant must be issued by an impartial magistrate or judge. That person must be sufficiently neutral and detached to review the facts and make a determination as to whether probable cause exists.
To request a search warrant, law enforcement officers prepare sworn statements called affidavits. The statements set out specific evidence showing that there is probable cause to believe that a search is justified. The information in the affidavit cannot be old or stale. While historical information can be included, an affidavit must include new or recent facts to establish probable cause. And all information must be based on credible sources, not on rumors. The affidavit must be specific regarding the place to be searched and the items to be seized.
Read More: How to Write a Search Warrant
The judge must weigh all of the evidence and circumstances before determining whether there is probable cause to search. "Probable cause" is a legal term indicating a reasonable belief that criminal activity is taking place in the premises to be searched or has taken place there. A judge issuing a search warrant must have a reasonable belief that the property described in the affidavit will be found in the searched location.
There is no precise formula for making this determination. The judge must take into account the totality of the circumstances, the precision with which the items to be seized are described and the evidence presented.
If a judge decides to grant the search warrant, she can restrict how and when the police conduct the search, whether a night search is permitted and other particulars. Each state sets limits about the time law enforcement has to execute a search warrant. In California, a search warrant must be executed within 10 days of the day it is issued. If the police do not use it within that time frame, it is void and must be reissued by the judge to be valid.
A search warrant is a court order. It is issued by a judge or magistrate and authorizes law enforcement officers to enter the premises at a specific location to search for and seize specific property.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.