Search Warrant

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

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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 license: a warrant authorizing a search for a stolen vehicle does not authorize 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 recognized 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

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 offense. Where a case depends on what a search produced, the affidavit behind the warrant is a document a defense lawyer will want early: warrants are challenged on what the officer told the judge, and that is only visible on the paper.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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