Q: What is a search warrant?
A: The word “warrant” literally means an authorization or order. In the legal world, the warrant usually comes from a court. For example, a “search warrant” is an order from a court authorizing a government agent to search for something. The Fourth Amendment to the United States Constitution prohibits government agents from making “unreasonable searches” of people, their homes, their papers, and their effects. The general rule is that a search conducted by a government agent without a search warrant is unreasonable, and therefore a violation of the Constitution. This general rule has many exceptions.
Q: Why are there exceptions if the rule is in the Constitution?
A: The Constitution does not prohibit all warrantless searches; it says the government is not allowed to conduct unreasonable warrantless searches. The law provides that judges generally decide whether a proposed search would be reasonable, but the law also recognizes that it might sometimes be “reasonable” for a government agent to conduct a search without first obtaining a warrant from a judge.
Q: What are some examples of “reasonable” warrantless searches?
A: There are a number of types of “reasonable” warrantless searches. One of the most common of these is known as “exigent circumstances,” such as when there is a legitimate safety concern or there is a great possibility that evidence will be destroyed. For example, if the police are searching for a missing child, there is a legitimate safety concern, so it would probably be reasonable for police officers to search in places where the child might be found without first obtaining a warrant for each place the officers need to look. Likewise, if officers have and can articulate a reasonable suspicion that there are drugs inside a house, and they hear the toilet repeatedly flushing after they’ve knocked on the door, then they have would have reason to believe that drugs are being flushed down the toilet, thus destroying evidence. Another common exception to the warrant requirement is a search that happens when a person is arrested. Courts have found that it is reasonable to search an arrested person without a warrant to make sure he or she has no weapons that might be used to resist the arrest or make an escape. This is known as “search incident to arrest.” Courts have also found several other types of searches without a warrant to be reasonable, such as searches of items in plain view of a police officer, outdoor areas surrounding a home, information on a workplace computer, immigration checkpoints, and setting up roadblocks to search for escaping criminals.
Q. Are the police allowed to search my car without a warrant?
A. Like many search and seizure issues, this will depend on the specific facts of your case. If there are items such as drugs or weapons within plain view of the police, there is a good possibility that your car will be subject to a warrantless search. Also, your car may be subject to a search any time you are cited for an offense that calls for your car to be impounded. For example, if you are pulled over and cited for driving without a valid license, your car is subject to being impounded. Because the police would be able to get a warrant to search your car at the impound lot, they do not need a warrant to search your car at the scene, as long as the cited offense calls for your car to be impounded. This is known as “inevitable discovery.”
Q: How does a judge decide whether a search is reasonable?
A: The U.S. Constitution provides that “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.” This means that, before a judge will issue a search warrant, a law enforcement official (officer) must testify under oath to the judge about what evidence the officer has to justify conducting the search - specifically, what the officer is searching for and where the officer thinks it will be found. Before the judge will issue the warrant, the officer’s testimony must be sufficient to convince a “prudent person” that evidence of a crime or illegal items would likely be found in the search. The warrant may be somewhat limited. If a warrant authorizes an officer to search a garage for a stolen car, for example, the officer cannot then search cupboards, doors and trashcans within the garage, since it is clear that the car could not possibly fit in those places.
Q: If the government has to get a warrant before searching, why was my child’s high school locker searched without a warrant?
A: There is no “reasonable expectation of privacy” that your child’s locker is private property. While it is true that police officers, public school employees, tax agents, the dogcatcher, and any other government employee must get a warrant for a search (unless an exception applies), the Constitution protects against unreasonable searches of people, their homes, their papers, and their effects. In other words, the Constitution limits where searches are prohibited. You have a reasonable expectation of privacy in your home, and an expectation not to be stopped and searched as you go about your day. However, there are places where we cannot reasonably expect privacy. For example, public schools almost always tell students—in writing—that the school maintains ownership and control of the lockers; since students don’t have a reasonable expectation of privacy, the warrant requirement doesn’t apply.
Q: Why don’t officials need a warrant to search me and my bags at the airport?
A: Sometimes, by your actions, you give your consent to be searched. For example, it is reasonable to search airline passengers for the safety of all those who are flying, so a condition of your getting on the plane is your “consent,” upon entering an airport, to be searched before you board a plane. Airports, courthouses and other government buildings may also require you to consent to a search before entering the facility.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by attorney Robert A. Beattey. It was updated by Columbus attorney Stephen T. Wolfe of Wolfe Law Group, LLC.