Acquiring a Search Warrant and a View on Warrantless Searches

Truly, it is a hard job to rule a country. But what is even a harder duty is enforcing the laws of the country one is trying to protect. To have a peaceful and harmonious country, laws are made and limitations are put. Since the United States is a country for the people, therefore the people’s welfare and interests are put first above everything. One of the primary interests of not just Americans but of most people at present are their rights: right to property, right to privacy, and the like. It is a law enforcer’s duty to protect these rights.

However, it’s saddening to hear these supposed public servants harm, abuse, and take advantage of the very people they are supposed to be helping and protecting. Way back 16th century, the English and American governments, having limitless power, were free to search houses, people, ships, and personal properties. This was called general warrants in England, and writs of assistance in America. The people’s rights were definitely violated. It was even more difficult to tell and assess whether these said law enforcers were way out of their line because of what was mentioned earlier as the government having unlimited power.

Due to complications brought upon by these situations, the Bill of Rights was made. More importantly, the Fourth Amendment was one of the very controversial yet said to be one of the most ambiguous in the Bill of Rights. It says: “The right of 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, or the persons or things to be seized.

(McWhirter 1994) As a result of this amendment, a search warrant is required when a police officer needs to search a person or any private property for that matter. A search warrant is a written order signed by a judge or any judicial authority that is addressed to the people concerned and ordering the law enforcers to search for a specific personal property and bring it before a judicial officer or magistrate. There are procedures in getting a search warrant. Some procedures vary from one state to another.

To be able to obtain a warrant, a probable cause is necessary information because it gives a preview of the case at hand. Reasonable suspicion is insufficient in getting a search warrant. A form with the following information should be filled out by the concerned officers: street and apartment number, physical description of the place to be searched, maps and photographs should also be given if available. Upon acquiring a search warrant, it does not mean that a thorough search of a house is applicable unless specified in the search warrant.

The following should also be specified: specific items to be searched; specific people to be searched with their names given if available; vehicle/s within the grounds, authorization on dismantling of equipment like firearms should be specified; appropriate names for seizure of any software or hardware; a “premise” and “cartilage” search in case of thorough house searches including garages, tool sheds or barns; and if a no “knock and announce/talk” would be done in case there are probable people that would get hurt or if the person sought for would likely try to escape. How can one say that such is a probable cause?

Probable cause has varied meanings. Its meaning also varies from one judge/magistrate to another. However a police officer puts it, the final word, whether such a thing is a probable cause or not, would always depend on the judge or the magistrate. Putting some of the definitions together, we can say that a probable cause is where a man of reasonable caution believes – with the aid of all the information the officer has acquired (known, seen, heard, and observed) – that a person has committed, is committing, or will commit a crime. There are many sources of probable cause as there are many interpretations of such.

These sources can be grouped into four: observation, expertise, circumstantial evidence, and information. These categories can be identified in the definition mentioned earlier. If a search warrant is necessary for most of the searches done by our law enforcement officers, there is also a thing called warrantless searches. A consent search and searches undertaken in plain view are examples of warrantless searches. A consent search, based from the root word “consent”, is the kind of search wherein the police officer asks for the approval of the other person before conducting any kind of search.

It is said that disapproval rarely happens. However, there are different kinds of authorities that may give the consent to this search. In case of a property search, the following can give the consent search: the owner, the co-owner for joint properties, or a third person that is given authority over such property/thing. Take note, even if consent is given, it is okay for the person to revoke such consent. Here are some points for officers to remember when asking for consent. They should not intimidate the addressee in any way. The officer’s should not hold any weapon.

The search should be done from 8 A. M. until 6 P. M. so that thoughts of impure intentions of the officers are avoided. It is best to voice record the on-going conversations for confirmation of the absence of police intimidation. On the other hand, the “plain view doctrine” is a common sensical kind of search. Any contraband seen in plain view can be apprehended without a warrant. Any thing illegal available for the viewing or peering of the public eye can be seized by police officers. Furthermore, this plainview doctrine is not limited to “viewing”.

There are cases like “plain hearing”, “plain smelling”, and “plain touching” which are also permissible under this search. For example, a police officer can stop a vehicle if he smells burning marijuana from the said vehicle. If a police officer heard a conversation about committing a crime or a crime committed loud enough for others to hear is also considered as plain hearing, therefore, giving the said officer probable cause to search and seize. References Blackberry, B. (2000 Spring/Summer). Warrantless searches. Civil Liberties Monitoring Project. Retrieved October 25, 2007 from http://www. civilliberties.

org/ss00searches. html MegaLinks in Criminal Justice. (2004, January 6). Probable cause. Retrieved October 25, 2007 from http://faculty. ncwc. edu/toconnor/315/315lect06. htm Paxton, M. (2003, November 5). Warrantless searches. Criminal Justice Institute School of Law Enforcement Supervision Session XXII. Retrieved October 25, 2007 from http://www. cji. net/CJI/CenterInfo/lemc/papers/Warrantless%20Searches. pdf Landmark cases Supreme Court. (2002). When is a search warrant not necessary? Every People Response Activity. Retrieved October 25, 2007 from http://www. landmarkcases. org/mapp/when. html