LawyerLandLegal Glossary

Search Warrant

A judge's written authorisation to search a specified place for specified things - and the exceptions that let police search without one are broad.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A search warrant is an order signed by a judge or magistrate permitting a search. To obtain one, an officer submits a sworn written application - an affidavit - setting out the facts said to establish probable cause. The judge decides on that application, usually without anyone appearing for the person whose property is to be searched, which means the first opportunity to contest it normally comes long afterwards.

Two requirements are written into the Fourth Amendment itself and are the ones most often litigated. A warrant must be supported by oath or affirmation, and it must particularly describe the place to be searched and the things to be seized. That particularity requirement is the reason a warrant is not a general licence: a warrant authorising a search for a stolen vehicle does not authorise reading a diary, and a warrant for one apartment does not cover the building.

The more consequential practical point is that a great deal of lawful searching happens with no warrant at all. Consent, a search incident to a lawful arrest, items in plain view, certain vehicle searches, and genuine emergencies are all recognised bases for searching without one. Consent is the one a person actually controls: agreeing to a search waives the objection, and agreement given because someone believed refusal was not an option counts as consent unless it can later be shown otherwise.

Digital devices are treated differently from the containers they physically resemble. The Supreme Court has held that police generally must obtain a warrant before searching the contents of a mobile phone seized during an arrest, and separately that acquiring historical cell-site location records from a carrier is a Fourth Amendment search. A phone in a pocket is not, for this purpose, like a wallet.

Where this comes from

The Fourth Amendment supplies the oath and particularity requirements. In federal cases the procedure for issuing and executing warrants is Federal Rule of Criminal Procedure 41; states have their own statutes and rules of criminal procedure, and most prosecutions in the United States proceed under them rather than under Rule 41. On phones and digital data see Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018). The exclusionary remedy for an unlawful search was applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961), and is subject to exceptions including the good-faith exception recognised in United States v. Leon, 468 U.S. 897 (1984).

When people hire a lawyer for this

Anyone shown a warrant is entitled to read it, and the two things worth reading are the address and the list of items - a search that goes materially beyond either is the kind of thing a lawyer can act on later, and only if someone noticed. Refusing consent to a search that is not covered by a warrant is not a crime and is not evidence of guilt, though physically obstructing a search may be a separate offence. Where a case depends on what a search produced, the affidavit behind the warrant is a document a defence lawyer will want early: warrants are challenged on what the officer told the judge, and that is only visible on the paper.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.
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