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Search Warrants

A search warrant is a judicial order authorizing agents of the government to search a home or other place. A law enforcement officer seeking a warrant must generally file an application with a competent court. Among the warrant application materials submitted is an affidavit detailing the information known to the police that supports the allegation that a crime has been committed. A search warrant is issued at an ex parte hearing, meaning that the defendant does not have a right to attend or even know the hearing has taken place.

The Fourth Amendment of the U.S. Constitution provides most of the controlling principles regarding search warrants. The Amendment provides that

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 person or things to be seized.

The Supreme Court of the United States, having the power of interpreting the Constitution, has decided many cases regarding the Fourth Amendment. Those cases have spelled out exactly what is required for the issuance of a constitutionally valid search warrant.

Magistrate Characteristics

A neutral and detached judicial officer must issue search warrants. The rationale is that the magistrate provides a buffer between the citizen and the police. Police officers, because of their duty to apprehend criminals, may become overzealous and reach incorrect conclusions about the existence of probable cause. Neutrality refers to the idea that the issuing magistrate can have no interest in the resolution of the case, or profit from the issuance of the warrant. For example, in Connally v. Georgia (1977), the Court said that a magistrate who was paid when he issued a warrant, and not paid when he failed to issue a warrant, was not a neutral magistrate. Similarly, the Supreme Court ruled in Coolidge v. New Hampshire (1971) that a state attorney general cannot issue warrants because, as the highest law enforcement official in the state, he or she is not neutral. In Lo-Ji Sales, Inc. v. New York (1979), the Court concluded that a magistrate who accompanied officers on the execution of the warrant and instructed them on which items could properly be seized compromised his neutrality, thus invalidating the warrant.

Although a magistrate must be neutral and detached, there is no requirement that the magistrate be an attorney or have any special legal training. In Shadwick v. City of Tampa (1972), the Court considered whether a municipal court clerk could issue search warrants. The critical question before the Court was the issue of whether a clerk was a magistrate for Fourth Amendment purposes. The Court ruled that the clerks, although not lawyers, worked within the judicial branch under supervision of municipal court judges and were qualified to make the determination of whether there is probable cause.

Determination of Probable Cause

Because the police are considered biased in their ability to determine the existence of probable cause, the duty falls on the magistrate. Generally, officers seeking a warrant will submit an affidavit to the court containing all of the pertinent facts about a case known to the police. It is this information that the magistrate uses to determine if the evidence meets the probable cause standard.

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