OpenJurist

Do the police need a warrant to search or arrest?

There are two different types of warrants that may be issued:

  • arrest warrants - an order issued by a judge or magistrate authorizing the arrest of a particular person for a particular crime; and

  • search warrants - an order issued by a judge or magistrate authorizing the police to conduct a search of a specific premises looking for specific objects.

The police do not always need to have a search warrant before conducting a search of a premises, but it is generally preferred that they do, especially if time permits. In some circumstances, however} time does not permit the police to go to the local courthouse, find a judge who has time to review the situ­ation, and obtain a search warrant.

In those types of emergency circumstances-when evidence is about to be destroyed or when the crime is in progress-the police may enter the premises and conduct a search without a warrant.

If a search warrant has been issued, then the warrant may actually indicate when the search is to be conducted. Typically, when the search warrant is to be served and executed is a matter of discretion for the police. Once the police hove arrived at the premises, they are expected to announce their entry. However, if they have some reasonable cause to fear that evidence is being destroyed or that the police themselves may be in danger as a result of announcing their presence, then the police may enter without notice. Once the police have entered the premises, anyone in the premises is detained pending the completion of that search. If illegal materials or the items that are sought are found in the premises, and if there is probable cause to believe that the persons on the premises have something to do with the crime at issue, then they may be arrested and charged with a criminal violation.

Sometimes the police may request a citizen to consent to a search either of their person or of their premises, Nobody hos to give such consent. If a person does consent to the search of his or her physical person or his or her home, it is considered to be a consensual search and the police do not need a warrant.

Police sometimes are called upon to utilize various types of surveillance techniques, consisting of wiretapping and electronic eavesdropping. That type of surveillance is controlled by specific state or federal statutes and as a general rule a warrant is neces­sary before the police can engage in that type of activity.

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