In the United States, the 4th Amendment to the U.S. Constitution protects against unreasonable searches and seizures by requiring a law enforcement officer to obtain a warrant before conducting a search.
Although most people are familiar with the concept of a warrant, they don’t truly understand the ins and outs of the search warrant requirement. Because you never know when you might be the subject of a search and seizure, an Omaha criminal defense lawyer at Petersen Law Office explains the warrant requirement.
The Fourth Amendment
The U.S. Constitution provides you with a number of important rights and privileges, including the right to be free from “unreasonable searches and seizures” found in the Fourth Amendment, which reads as follows:
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.
What Does the 4th Amendment Mean?
The 4th Amendment was included in the “Bill of Rights” (the first ten Amendments) because of the creators feared a government that could search at will, without any restraint.
With that fear in mind, the 4th Amendment was intended to require a law enforcement officer to first obtain a warrant before being allowed to search your person or your property.
The strength of the 4th Amendment warrant requirement has been watered down over the years; however, it does still exist as a protection against unreasonable searches and seizures.
What Is a Warrant?
In the context of the 4th Amendment, a warrant is required before a search may be conducted. A warrant was originally required to be in writing; however, new warrant laws allow a police officer to obtain a warrant telephonically when time is of the essence. Typically, however, a warrant is requested through the use of a probable cause affidavit submitted by a police officer.
A warrant must describe the probable cause to conduct a requested search. Probable cause is a term that has been argued over for centuries. For purposes of discussing the warrant requirement, however, probable cause can be defined as a “reasonable belief that evidence of a crime will be found in the place to be searched.”
The affidavit is then presented to a judge or magistrate who must be convinced that the information contained in the affidavit amounts to the requisite probable cause and that all other requirements for the issuance of a warrant are met. For example, the request must specifically state the place to be searched and the items to be seized.
If the request is too broad, a judge will not sign the warrant. If the judge is satisfied that the requirements are met, he/she will sign the warrant. This gives the police the legal authority to conduct a search and seizure.
What Happens If A Search Is Conducted without a Warrant?
Despite the 4th Amendment warrant requirement, searches and seizures are conducted all the time without a warrant. Some of these have been found by the courts to be exceptions to the warrant requirement.
For example, a vehicle on a public roadway does not require a warrant to be searched. Likewise, the police can conduct a “pat-down” search of your person without a warrant to check for weapons or contraband without a warrant.
Your home remains covered under the warrant requirement, unless an exception applies. Exceptions to the warrant requirement for the search of a home include consent, plain view, incident to an arrest, and exigent circumstances.
If, however, law enforcement officers conduct a warrantless search and seizure when an exception does not apply, or if there is a problem with the warrant obtained by the police, the search may be declared illegal by a judge. If that happens, the evidence seized during the search is generally inadmissible at trial.
Contact an Omaha Criminal Defense Lawyer at Petersen Law Office
If you are concerned that you may have been the victim of an illegal search and seizure in the State of Nebraska, it is in your best interest to consult with an experienced Omaha criminal defense lawyer immediately about the specific facts and circumstances of your case.