Andrew Delke

The Search Warrant Requirement and What It Means in a Criminal Case

In the United States, the 4th Amendment to the U.S. Constitution protects against unreasonable searches and seizures by requiring a law enforcement officer to obtain a warrant before criminal attorneyconducting a search. Although most people are familiar with the concept of a warrant, they don’t truly understand the ins and outs of the warrant requirement. Because you never know when you might be the subject of a search and seizure, a Murfreesboro criminal defense attorney at Bennett, Michael & Hornsby explains the warrant requirement.

Your Constitutional Rights

The U.S. Constitution provides you with several important rights and privileges, including the right to be free from “unreasonable searches and seizures” found in the Fourth Amendment, which reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, 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.

In addition, Article I, Section 7 of Tennessee’s state constitution also affords you a right against unreasonable searches and seizures, reading as follows:

That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not be granted.

In general, the 4th Amendment and Section 7 stand for the idea a law enforcement officer is required to first obtain a warrant before being allowed to search your person or your property. The strength of your rights under the 4th Amendment (and Section 7) warrant requirement has been watered down over the years; however, it does still exist as a protection against unreasonable searches and seizures.

What Is a Warrant?

A warrant was originally required to be in writing; however, a police officer may be able to obtain one telephonically or even virtually now when time is of the essence. Typically, however, a warrant is requested with a probable cause affidavit submitted by a police officer. The affidavit must provide sufficient information to create probable cause to conduct the requested search. Probable cause is a term that has been argued over for centuries. For purposes of discussing the warrant requirement, however, probable cause can be defined as a “reasonable belief that evidence of a crime will be found in the place to be searched.” The affidavit is then presented to a judge or magistrate who must be convinced that the information contained in the affidavit amounts to the requisite probable cause and that all other requirements for the issuance of a warrant are met. For example, the request must specifically state the place to be searched and the items to be seized. If the request is too broad, a judge should not sign the warrant. If the judge is satisfied that the requirements are met, he/she will sign the warrant. This gives the police the legal authority to conduct a search and seizure.

What Happens If A Search Is Conducted without a Warrant?

There are exceptions to the warrant requirement. For example, a vehicle on a public roadway does not require a warrant to be searched. Likewise, the police can conduct a “pat down” search of your person without a warrant to check for weapons or contraband without a warrant. Your home remains covered under the warrant requirement; however, there are exceptions that include consent, plain view, incident to an arrest, and exigent circumstances. If law enforcement officers conduct a warrantless search and seizure when an exception does not apply, or if there is a problem with the warrant obtained by the police, the search may be declared illegal by a judge. If that happens, the evidence seized during the search may be declared inadmissible at trial.

Contact a Murfreesboro Criminal Defense Attorney

If you have been charged with a criminal offense that included a search and seizure, consult with an experienced Murfreesboro criminal defense attorney at Bennett, Michael & Hornsby as soon as possible to discuss your legal options. Contact the team today by calling 615-898-1560 to schedule your free appointment.







Stan Bennett