Search warrant requirement Summary

  • Last updated on November 11, 2022

The necessity of obtaining a warrant from a judge, based on meeting certain criteria, before law enforcement personnel can conduct a search.

While under British rule, the thirteen North American colonies were subject to a system of law, one aspect of which was the writ of assistance, which allowed government officials to conduct general searches. The writ of assistance empowered local authories to search anywhere for contraband. British judges did not need to hear any facts regarding illegal activity before a writ was issued and a search conducted. A search could be conducted on mere suspicion and at any location. After the American Revolution, the citizens of the new country were interested in limiting government searches. The Bill of Rights, ratified in 1791, contained the Fourth Amendment, which protected people from unreasonable searches. The Fourth Amendment set out the requirements the government must meet before a search warrant can be issued. The amendment states a warrant cannot be issued “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”Fourth Amendment

Requirements of a Search Warrant

Through numerous cases, the Supreme Court has defined the exact requirement of the warrant clause. The Court has repeatedly defined the “probable cause” needed for a search warrant to be issued. To obtain a search warrant, law enforcement officers must show they have reliable and sufficient facts that would cause a reasonable person to believe a criminal act has been committed and that items or a person subject to seizure are at the location to be searched. Probable cause for the warrant cannot be based on what the subsequent search uncovers, only on the facts known when the warrant was issued. The Court also ruled that the probable cause must have been obtained legally. If law enforcement obtains information through an illegal search, it cannot remove the unconstitutional taint on the evidence by later applying for a search warrant. The amount of time between the gathering of probable cause and the execution of the search warrant may make the warrant “stale.” If an inordinate amount of time passes and doubt arises whether the object of the warrant is still at the location, then the warrant may become invalid because of outdated probable cause.

The warrant must particularly describe the place to be searched or the item or person to be seized. The place to be searched must be described in the warrant to the extent that it can be set apart from all other locations. The Court has ruled that if an officer can with reasonable effort ascertain and identify the place to be searched then the warrant will be valid. The warrant must also describe items to be seized well enough that an officer can exclude all other items. Failure of the description to be precise enough to exclude other locations or failure to adequately describe an item or person to be seized will make the warrant invalid and the search illegal.

Although the Fourth Amendment does not expressly state that a warrant will be issued by a neutral and detached magistrate, it is generally regarded to be inherent. One of the purposes of a warrant is to allow a neutral party to decide whether law enforcement has probable cause to conduct a search. It is an essential part of the search warrant process to have a detached party review the facts and issue a warrant only if probable cause is present. Failure to have a warrant issued by an impartial and unbiased party will invalidate the warrant and make the search illegal.

The final requirement of the search warrant clause requires the warrant to be supported by an oath or affirmation. The oath or affirmation must be administered by the party issuing the warrant before testimony about probable cause. The Court has held that if the person supplying the probable cause recklessly disregards the truth or knowingly gives false evidence, the search warrant is invalid.


The Supreme Court has found six instances in which a search is reasonable and valid without a warrant. When an officer arrests a suspect, the officer may conduct a search incident to an arrest. However, the Court ruled that only the person and the immediate area are subject to search in Chimel v. California[case]Chimel v. California[Chimel v. California] (1969). The arrest must be lawful or the evidence may be deemed inadmissible under the exclusionary ruleExclusionary rule. Under the automobile exception established by Carroll v. United States[case]Carroll v. United States[Carroll v. United States] (1925), if the police have probable cause to believe that an automobile contains evidence of a crime, fruit of a crime, or contraband, a search may be conducted without a warrant. If law enforcement observes evidence of a crime, and they have a legal right to be at the location, they may make a warrantless search under the plain view doctrine. The Court has recognized that a citizen may waive his or her Fourth Amendment rights by voluntarily and intelligently consenting to a search, allowing an officer to make a legal warrantless search. In Terry v. Ohio[case]Terry v. Ohio[Terry v. Ohio] (1968), the Court concluded that officers may conduct a limited search of a person (by frisking him or her) for weapons if they have a reasonable suspicion that the person is armed and dangerous. Stop and frisk ruleThe Court also held that when an officer is in hot pursuit, or where evidence may be destroyed or hidden away, or the evidence is a threat to public safety, an officer may make a warrantless search.

Further Reading
  • Bloom, Robert M. Searches, Seizures, and Warrants. Westport, Conn.: Praeger, 2003.
  • Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 6th ed. Belmont, Calif.: Thomson/Wadsworth, 2004.
  • Ferdico, John N. Criminal Procedure for the Criminal Justice Professional. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2005.
  • Klotter, John C. Legal Guide for Police: Constitutional Issues. 6th ed. Cincinnati, Ohio: Anderson, 2002.
  • O’Brien, David M. Constitutional Law and Politics. 6th ed. New York: W. W. Norton, 2005.
  • Stephens, Otis H., and Richard A. Glenn. Unreasonable Searches and Seizures: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2004.

Automobile searches

Bill of Rights

Carroll v. United States

Chimel v. California

Exclusionary rule

Fourth Amendment

Mapp v. Ohio

Newsroom searches

Stop and frisk rule

Terry v. Ohio

Categories: History