Authority to Issue Search Warrant
Title 18 US Code 3102 codifies this rule into federal law.
This rule operates under the Fourth Amendment and has existed in some form since the beginning of America. The Rule is codified on the federal and the state level. State Codes should be examined if you wish to understand the rules that govern your state.
What the US Code Says:
Federal, State or Territorial Judges, or U.S. magistrate judges authorized to issue search warrants, Rule 41(a).
What the Rule Means:
This rule qualifies who is able to issue search warrants. It is very specific in the positions that have the authority to issue them and no one not in one of the listed positions of authority generally has such powers.
The rule maintains protection for the individual as guaranteed by the fourth Amendment, which protects against unreasonable searches and seizures. By requiring that a judge or magistrate issue a warrant only after a certain threshold of reasonable cause has been met, citizens should be protected from police ill intent or third parties using the police against others.
The rule maintains protection for the individual as guaranteed by the fourth Amendment, which protects against unreasonable searches and seizures. By requiring that a judge or magistrate issue a warrant only after a certain threshold of reasonable cause has been met, citizens should be protected from police ill intent or third parties using the police against others.
What Happens if the Rule is Violated:
If officers search without a warrant, all evidence collected can be thrown out. Because of Qualified Immunity (see below) suing the officers will most likely not be possible. However, if Qualified Immunity does not apply, damages can be collected as well.
Exceptions:
Only judges and magistrates can issue a search warrant but there are exceptions to when they are required.
1. Consent: If you give officers permission to search your property or person, they don't need a search warrant.
2. Plain View: If an officer is in a legally permitted area and sees (or smells) something that is evidence of an illegal activity, a search warrant is not required.
3. Arrest: Police can search people and places in connection to an arrest being lawfully made. During this sweep, while looking for weapons and/or accomplices, the plain view exception is in effect.
4. Emergency or Extreme Situations: If the police reasonably suspect that evidence might be destroyed while waiting for a search warrant they can search. If they are made aware of a public safety issue or a threat to the life and/or safety of an individual a warrant is not required
1. Consent: If you give officers permission to search your property or person, they don't need a search warrant.
2. Plain View: If an officer is in a legally permitted area and sees (or smells) something that is evidence of an illegal activity, a search warrant is not required.
3. Arrest: Police can search people and places in connection to an arrest being lawfully made. During this sweep, while looking for weapons and/or accomplices, the plain view exception is in effect.
4. Emergency or Extreme Situations: If the police reasonably suspect that evidence might be destroyed while waiting for a search warrant they can search. If they are made aware of a public safety issue or a threat to the life and/or safety of an individual a warrant is not required
Tricks:
Although not a trick, many officers will simply ask if it is okay to search your property, some with the understanding that many people are uncomfortable saying no for a variety of reasons.
Resources:
Pacts Inc. is not a law office and this information was not prepared by an attorney. Contact an attorney if you need legal assistance.
