What Are Common Search Warrant Requirements?

Search warrant requirements are designed to protect the public against abusive searches and unnecessary invasions of privacy by the government. The Fourth Amendment of the US Constitution provides 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.” A warrant must be sought by application of a law enforcement official and authorized by a judge.

A warrant application is usually presented to the court by a district or assistant state’s attorney. It must be supported by a sworn affidavit, usually from a police officer, but it can be a from a crime victim or witness. Search warrant requirements include that the information in the affidavit be obtained from direct observation of the crime or a reliable source. The judge must find that the facts in the affidavit support a finding of “probable cause,” which means that there is sufficient information to persuade a reasonable person that there is evidence a crime has been committed.

If the affidavit information is not provided by a police officer with direct knowledge of the crime, the judge must use a two part test to evaluate the trustworthiness of the information. The court first looks at the veracity of the person supplying the information. This means deciding whether there are sufficient facts about the person and the event to conclude that the person supplying the information is being truthful. The court then looks at the basis of the person’s knowledge about the crime to ensure that the information is more substantial than a mere rumor. If the judge does not believe the affidavit supports a finding of probable cause, she may deny the warrant.

Search warrant requirements include that a warrant specify the time and place at which it is to be executed. It has to be served within the time specified by the state jurisdiction in which it is issued. The person upon whom the warrant is issued must be given a copy.

Elements of American search warrant requirements have found their way into the law of other countries. Cuban criminal law has been influenced by the Spanish Penal code and both Marxist and American concepts. Although police powers are broad, rules regarding search warrants are strict. Warrants must be issued by a judge, but this can be a lay person who is authorized to act in a judicial capacity. Warrants must specify what is to be searched for and where and when the search will take place.

In Barbados, a police officer applies to a court for authorization to search a premises. The warrant application must state its purpose, including the nature of the offense and the particular place where entry is authorized. The judge must be satisfied that grounds for a warrant exist. The officer may then seize items, including documents, reasonably believed to be evidence of a crime.

Under former Canadian law, searches were conducted with a writ of assistance. With these writs, police could enter and search a home anytime criminal activity was suspected. After the 1982 Constitution Act’s Charter of Rights and Freedoms, just as under US law, everyone in Canada has the legal right to be “secure from unreasonable search or seizure.”