Search warrant

In England and Wales, a local magistrate issues search warrants, which require that a constable provide evidence that supports the warrant application.

Under Section 18(5)a of Police and Criminal Evidence Act 1984, a constable can conduct a search immediately without an inspector's authorisation. This subsection allows a constable to search the home of a suspect(s) under arrest in their presence before they take the suspect to a police station (or other custody location). Under Section 32 of Police and Criminal Evidence Act 1984, a constable who arrests a person who is on their own property or has just left their premises, may immediately search both the suspect and the immediate area.

In Scotland, a country operating on the distinct legal system of Scots law compared to England and Wales – the restrictions governing the use and execution of search warrants are set out under Part XIII under the Criminal Procedure (Scotland) Act 1995. Search warrants must be signed by a Sheriff after a petition from police.[1]

Gas company officials may enter a home to inspect, repair, or replace gas meters by obtaining a warrant.[2]

To get a warrant, police must present a judge with an ITO (information to obtain) form that contains reasonable and probable grounds to believe an offence has been or is being committed and that the authorization sought will afford evidence of that offence. This hearing is ex parte, meaning only the crown is present. This fact obliges the police to include any known facts that hurt their application.[3][4]

After a search the occupants have a copy of the warrant and may get hold of the ITO through crown disclosure[5] if the occupant(s) are charged. There are numerous different warrant procedures in the Criminal Code, some have specific requirements such as being served during daytime or having a named supervising officer present in the case of a home search.[6] If these (see link)[7] requirements are not met by the police the evidence found may become inadmissible against the accused at trial.

Under section 93 of IPC, a search warrant can be issued by a court if:
(1) (a) Where any Court has reason to believe that a person to whom a summons order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) where such document or thing is not known to the Court to be in the possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.
(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.[8]

Request for a search warrant dated December 11, 1905

Under the Fourth Amendment to the United States Constitution, most police searches require a search warrant based on probable cause.[9] The absence of valid consent or an exception to the warrant requirement (whether for purposes of effecting a search or an arrest) normally requires a warrant for police entry in an individual's home.[9] The probable cause standard for obtaining a search warrant is lower than the quantum of proof required for a later criminal conviction, which requires proof beyond a reasonable doubt.[10]

Under the Fourth Amendment, search warrants must be reasonable and particular.[9][11] This means that a search warrant must reasonably identify the items to be searched for and the place where law enforcement officials are authorized to search for those items. Unless an exception to the warrant requirement applies, the search of other buildings or areas of a building, persons or vehicles, or the search for additional items that do not reasonably fall under the original warrant, will normally require additional search warrants.

To obtain a search warrant, an officer must prove to a magistrate or judge that probable cause exists for the proposed search, based upon direct information (i.e., the officer's personal observation) or other reliable information. An application for a search warrant will often rely upon hearsay information, such as information obtained from a confidential informant, as long as probable cause exists based on the totality of the circumstances. Police can seize both property and persons under a search warrant. The rationale is that evidence police collect without a search warrant may not be sufficient to convict, but may be sufficient to suggest that a warrant would allow police to find enough evidence to convict.

The issue of federal warrants is determined under Title 18 of the United States Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure.[12] Federal search warrants may be prepared on Form AO 93, Search and Seizure Warrant.[13] Although the laws are broadly similar, each state has its own laws and rules of procedure governing the issuance of warrants.

Search warrants are normally available to the public. On the other hand, they may be sealed if they contain sensitive information.[14]