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 searches; it says the government is not allowed to conduct unreasonable 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. For example, in an emergency situation where police are searching for a missing child, it would probably be reasonable for police officers to search places where the child might be found without obtaining a warrant for each place the officers need to look. 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. The courts have also found several other types of searches without a warrant to be reasonable, such as items in plain view of a police officer, outdoor areas surrounding a home, information on a workplace computer, immigration checkpoints, and roadblocks to search for escaping criminals.
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 government agent 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.
Q: If the government has to get a warrant before searching, why was my child’s high school locker searched without a warrant?
A: The direct answer is because there is no “reasonable expectation of privacy” that your child’s locker is private. 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. But 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 you give your consent to be searched by your actions. 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 are all examples of places where your entry into the facility is conditioned upon your consenting to be searched.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Robert A. Beattey.