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Do police always need a warrant to arrest you? When can law enforcement search your home or car? Do police need both an arrest warrant and a search warrant? What is the difference between an arrest warrant and a search warrant? These are important questions and it is crucial to understand your basic legal rights if you encounter police.
A warrant is a legal document that is issued by a judge or grand jury. The warrant authorizes law enforcement to engage in some activity that would otherwise violate your Constitutional rights. An arrest warrant authorizes police to detain you and keep you in custody for a period of time. A search warrant authorizes police to search a specific location for specific evidence. Police do not always have to have a warrant to place you under arrest or search you.
An arrest warrant is a legal authorization from the court to place you under arrest. It may be issued when law enforcement or a grand jury believe (and show) that there is probable cause to think that something illegal has occurred and that you were involved. Arrest warrants are generally based on sworn statements, known as affidavits, of police officers. These affidavits explain the reason why the police officer believes an arrest warrant should be issued. This probable cause can be based on the police officer’s own observation and/or by information provided by witnesses. If the information is provided by witnesses there must be a strong indication that the witness is credible and that they have a strong basis of knowledge for their statements. A judge who reviews an application for an arrest warrant must be persuaded that the totality of the circumstances suggest that the facts are valid and that a warrant should be issued.
Police do not always need to have an arrest warrant to place you under arrest. If police have probable cause and witness a crime they can arrest you without getting a warrant. If police do not witness a crime or have probable cause they must petition a court to issue an arrest warrant. Arrest warrants must contain certain information to be valid. If an arrest warrant is not executed properly it can disrupt the case against you. To be valid, an arrest warrant must:
An arrest warrant does not necessarily have to contain your name to be valid. The Fourth Amendment requires that the warrant “particularly describe” the person to be arrested. If that description contains enough detail that would reasonably lead law enforcement to determine that you were the intended subject, the warrant may still be valid.
Police who have a warrant for your arrest may place you under lawful arrest and detain you. Police may also perform a search incident to your arrest. This means that they may search your immediate person (body) and the plain view area in which you are arrested.
Police who have a warrant for your arrest may not search your home, car, or other location that is not in plain view. An arrest warrant is different from a search warrant and only authorizes police to place you under arrest. If police ask if they can search your home, car, or other location not in plain view you have the right to say no.
A search warrant is a legal authorization from the court for police to search a specific location (or locations) for specific evidence. A search warrant overrides your right to be free from unreasonable searches and seizures. The search warrant makes the search reasonable. Police who ask for a search warrant must persuade the judge that a crime has been committed and evidence relevant to that crime is likely to be found in the location(s) listed on the search warrant.
A search warrant must be issued with reasonable particularity. This means that it must describe, in detail, the specific location to be searched and the specific evidence that the warrant is executed to recover. A warrant must be so clear that there is no room for a police officer to exercise discretion or judgment during a search. General descriptions are less likely to be upheld on a challenge than detailed and specific descriptions.
Police are generally required to used search warrants within 10 days of the date they are issued. Unless exigent circumstances exist, a search warrant must be executed between 7am and 10pm. If police reasonably believe and can show that evidence may be destroyed or a suspect may try to run a judge may authorize a search warrant to be executed at night.
Police must generally “knock and announce” a search warrant. When this happens you have the right to ask to see the warrant. In fact, you should always ask to see the search warrant. In most cases, police may not search your home without (a) your permission or (b) a search warrant. Review the warrant to make sure it contains all of the information that is legally required. This includes:
If the search warrant is missing any of these requirements it may not be valid! (Note, a search warrant may still be valid even if your name is not on it if the address and descriptions are accurate.) If police do not have a warrant or do not have a valid warrant you are not required to let them into your home. Police may not use your refusal to allow them to search as grounds for a warrant.
One important reason to carefully review a search warrant is to make sure that it actually is a search warrant. Administrative warrants – including warrants of deportation or removal – are not search or arrest warrants and do not authorize police to conduct an arrest or search. Police may try to make you believe that an administrative warrant gives them these powers. You have the right to review the warrant and, if improper, decline a search.
If you have been arrested and/or charged with a crime in San Diego you should not hesitate to contact an experienced criminal defense attorney to represent you. Your attorney will review the arrest and/or search warrants that were used to detain you and collect evidence to make sure that they are legal. Your attorney may file a motion to suppress based on an unreasonable search and seizure if:
If the motion is successful the state will not be able to use the evidence it collected against you. Contact our office today to schedule an initial consultation and to learn about how we can help to protect your Constitutional rights against unreasonable searches and seizures.
Law Office of Vikas Bajaj, APC
1230 Columbia Street Suite 565
San Diego, CA 92101
