One of the most important rights you have is the right to privacy. Under the Fourth Amendment of the US Constitution and Article 14 of the Massachusetts Declaration of Rights, you have a right to be free from unreasonable searches and seizures. This right stops the government from illegally searching and taking from things like:

  • Your body
  • Your home
  • Your car
  • Your place of work
  • Your personal possessions

What is a search warrant?

A search warrant is an order issued by a judge or clerk magistrate that allows the police to search a specific place for evidence without permission from the owner or occupant of the thing being searched. The purpose of search warrants is to protect privacy by limiting the government’s ability to search and take possession of personal property.

A search warrant is not the same as a default warrant.

What are the requirements for a search warrant?

The US Constitution specifically mentions search warrants in the Fourth Amendment. It says that 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.

We can break this rule down by looking at the three different parts of a search warrant:

Probable Cause. A search warrant must be supported by a court officer’s affirmation that, based upon objective facts, the officer believes that evidence of criminal conduct will be found in the place stated in the application for the warrant. Without probable cause, a search warrant cannot issue.

Requiring probable cause ensures that a search warrant is not issued arbitrarily. Under the law, there must be a legitimate reason to allow police to search your personal property. The police should not be searching your possessions for political, racial, or any other discriminatory reason.

Oath or Affirmation. The oath or affirmation requirement is closely connected to probable cause. The police obtain search warrants by presenting sworn statements or affidavits to judges or clerk magistrates. These affidavits lay out the police’s argument that there is probable cause for the warrant to issue. Supporting affidavits can draw from different sources, including:

  • Civilian witnesses
  • Police informants
  • Police observations/investigation

It is also required that the judge or clerk magistrate issuing the warrant be neutral and detached. This means that the judge or clerk cannot be biased in favor of the police and must not have a conflict of interest in issuing the warrant.

Description of Items Searched / Seized. The police must provide in their application for a search warrant a specific description of the place that they will search and the items that they are looking to take into custody or seize.

Over the course of many decades, the courts have considered a number of Massachusetts and federal cases about what the police need to include in their affidavits for a search warrant to issue. Here are some of the most important requirements:

  • The police must make an allegation that evidence of a crime will likely be discovered.
  • The police must provide support that criminal conduct occurred recent to the time of applying for the warrant.
  • The police must provide allegations that criminal conduct is likely to produce evidence of a crime that took place at that location.

Are there exceptions to obtaining a search warrant?

Unfortunately, the law gets more complicated because there are several exceptions to the search warrant requirement.

The courts have allowed these exceptions based on the concept of exigency or emergency. The logic is that there must be a balance between protecting privacy and allowing police to do their jobs and address criminal conduct. In some circumstances, it may be impractical for police to go through the process of applying for a search warrant from a judge or clerk magistrate. This is usually the case when there is reason to believe that the suspected person could flee or destroy evidence. It also could occur when there is some danger to a specific person or the public.

Exigency depends on the type of property being searched. Fixed locations, like a house, apartment, or hotel room are least likely to support exigency because those locations cannot move. On the other hand, cars or people are mobile. Mobile locations present a greater risk of flight or destruction of evidence.

More specifically, the courts have established some context-specific exceptions to search warrants. Here are some of the major ones:

Plain View. If the police observe evidence of a crime or contraband (illegal items) in plain view or out in public, they do not need a search warrant to seize the property. Police only need to have observed the item or items from a lawful place (ex: a public road) and have probable cause.

Hot Pursuit. If the police have just observed a crime and are chasing a suspected person to a private house, the police do not need a search warrant to enter the house to stop the suspect from escaping or hiding or destroying evidence.

Automobile Exception. If police pull a vehicle over for a routine traffic stop and they observe evidence of a crime or have probable cause to believe that there is evidence of criminal conduct, they are allowed to search the car without a warrant. The logic behind this is that since a car is mobile and evidence of a crime could easily be hidden or destroyed, it would be too much of a burden on the police to require them to obtain a warrant through the courts.

Search Incident to Arrest. If a person is lawfully arrested for a crime, the police are allowed to search the person for weapons and other evidence. Police do not need to obtain a search warrant.

Stop and Frisk. A more controversial exception is a stop and frisk search. A stop and frisk is a brief, non-intrusive police stop of a suspect. It is a quick pat-down of the suspect’s outer clothing. Police must have reasonable suspicion that a crime has been, is being, or is about to be committed by the suspect to conduct a stop and frisk. Reasonable suspicion is a lower burden of proof than probable cause meaning that less suspicion is required for police to lawfully conduct a stop and frisk.

What are defenses to evidence taken during the execution of a search warrant?

Thanks to the US and Massachusetts Constitutions and the many court rules concerning search warrants, there are often defenses available when police execute a search warrant and take evidence from your personal property.

Your attorney’s job is to thoroughly review the search warrant and ensure that all the lawful requirements to obtain one were met:

  • Was there probable cause?
  • Did the police provide enough support for probable cause in their affidavits?
  • Were the items searched and seized accurately described?

If the police did not apply for and obtain a search warrant but relied on an exception to the warrant requirement, your attorney will consider the relevant case law to determine if the police acted lawfully. Was there a valid exception for the search and seizure?

Your attorney will also consider how the search warrant was executed (used) to take evidence. When a search warrant is issued, there are certain rules and procedures that the police are supposed to follow:

  • Did the police properly knock and announce their presence before executing the warrant?
  • Did the police execute the warrant at an appropriate time?
  • Did the police exceed the scope of what the warrant permitted them to search?
  • Did the police appropriately conduct the search?

In Massachusetts, courts must follow the exclusionary rule. This means that a judge must throw out or “suppress” any evidence illegally taken. If the police did not have justification for a warrant, searched without one unlawfully, or executed a warrant inappropriately, any evidence taken must be suppressed. Suppressed evidence cannot be used against you at trial. This thrown out evidence could make the difference in the outcome of your case.

In the news…

Search warrants should not be used by law enforcement to target someone politically but often times they are. Last week, former FBI lawyer Kevin Clinesmith pled guilty to altering an email that helped justify a search warrant for surveillance of former Trump campaign adviser Carter Page as part of the 2016 Russia investigation. In the email, Clinesmith falsely stated that Page was not a CIA source, even though he did previously have a relationship with the agency. Clinesmith will be a convicted felon thanks to his unlawful conduct.



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