What do the Police Need in Order to Obtain a Search Warrant?
When law enforcement officers want to search someone’s home or property for evidence of criminal activity, they usually need to obtain a search warrant. In general, searches that are conducted without a warrant violate the Fourth Amendment to the U.S. Constitution and, if you are in Kentucky, Section 10 of the Kentucky Constitution. However, there are exceptions to this rule (more on that later).
What is a Search Warrant?
A search warrant is an order that is signed by a judge authorizing law enforcement officers to search for specific evidence at a defined location. For example, a warrant may authorize the police to search a designated unit in an apartment building for marijuana. The police can only search the location listed in the warrant, and only for the evidence described.
Using this example, the police could not suddenly decide to search for weapons in the apartment next door if that apartment and these items (weapons) are not listed in the warrant. If in the course of a legal search, however, if the police come across other evidence of a crime that was beyond the purview of the search that was authorized, they can often seize that evidence.
What is Needed for the Police to Obtain a Search Warrant?
In order to be granted a search warrant, the law enforcement officer must establish probable cause. The Fourth Amendment to the U.S. Constitution specifically says:
The right of the people to be secure in their persons, houses, papers, and effects,[a] 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.
To obtain a search warrant, police officers must submit an affidavit (a sworn written statement under oath) stating the facts as to why they believe probable cause exists to conduct a search. These statements may be based on their own observations or those of police informants or other citizens. If the judge believes that probable cause has been established, they will issue the warrant.
At the time that the affidavit (or affidavits) are submitted to the judge, the suspect who may be connected to the warrant is not present and therefore has no opportunity to challenge the assertion of probable cause. Essentially, the judge is relying on the integrity of the police officer and the assumption that they have not misrepresented the facts or presented false information. The validity of the warrant can later be challenged if the suspect is arrested and charged with a crime.
When Can a Search be Conducted without a Warrant?
The police do not always need to obtain a warrant to legally conduct a search. Some circumstances in which a warrant may not be necessary include:
- Consent searches: The most common exception to the search warrant requirement is when a person who is in control of the premises gives their voluntary consent to conduct the search. Police will often try to convince someone to give their consent by saying something like “I can get a warrant if I want to, so why go through all the trouble?” Even if that is true, it is still in your best interests to make them to obtain a warrant. If you force them to get a warrant and it turns out to be defective in some way, the warrant can be successfully challenged, and you may be able to exclude any evidence obtained as a result of the search. If, on the other hand, you consented to the search, evidence found cannot be excluded.
- The plain view doctrine: A police officer does not need a warrant if they spot contraband or other evidence that is in plain sight. For example, if the officer knocks on your apartment door and you open it and there is a baggie sitting on the chair next to the door, the officer can probably seize the baggie based on the plain view doctrine.
- Incident to an arrest: After making a lawful arrest, the officer has the right to search the suspect and the area within the suspect’s immediate control. This type of search is typically done to help ensure that the suspect does not have access to contraband and weapons after the arrest is made.
- Exigent circumstances: In emergency situations in which getting a warrant would jeopardize public safety or result in the loss of critical evidence, the police may have the authority to conduct a warrantless search.
Arrested After a Search and Seizure in Kentucky? Contact a Seasoned Criminal Defense Lawyer
If you have been arrested based on evidence obtained through a search of your property, there may be ways to get the charges reduced or dropped altogether, depending on the circumstances. Even if the police had a search warrant, it may be possible to challenge the validity of the warrant. Attorney Ron Aslam is a former prosecutor with extensive experience successfully defending individuals who have faced all types of criminal charges in Kentucky. Ron can meet with you to review your case and advise you of your rights and legal options.
Call our office today at 502-581-1676 to schedule an initial consultation with Attorney Aslam. You may also message us through our web contact form or stop by our Louisville office in person at your convenience.