Warrant and Warrantless Search
A search warrant gives the officer the right to search for evidence in a home without the consent of the owner. It must be issued by a court of law after an applicationby an officer presenting reasonable evidence ofproof of suspicion. The provision of proof by the officer therefore is the first to obtain a search warrant.The officer must state specifically a signed affidavit detailing evidence of probable cause.
A warrant must state clearly the specifics of the place they intend to search and items he intends to seize as evidence. The judge considersthese circumstances and decides either to issue a warrant or not. The judge also has to give the particular procedure on how the search is going to be conducted. For a search warrant to be issued the owner of the property does not have to be involved in the crime committed(Warnken, n.d.). The only thing an officer has to prove is the probable cause.
A case in point is the 1978 case of Zurcher vs. Stanford Dairy 436 U.S. 547. In this case, the police officer was issued with a search warrant to look at the student’s article which contained photographic evidence of the demonstrator who killed a police officer during the demonstration.
There are only three legitimate ways the officer may search the suspect’s house. The first,is if the owner expressed his consent. Alternatively, exigent circumstances must exist or he possesses a warrant an option the officer in this case does not have.
The question is if there are any exigent circumstances that may justify a search. A potential witness claiming that the suspect might be a heroine user and dealer does not qualify as exigent circumstances as the element of violence and immediate threat are lacking in this case. The fact that he sells the drug to support his habit and not for a gang, indicates he is not likely to cause physical harm to his neighbors.
This is the only open avenue to obtain consent. This may be obtained from the suspect or a person he lives with. However, if the person does not live in the house or in case the suspect is drunk, then neither of the consent will legitimize the search.This officer only needs to get the consent of the suspect or a person whom he may live with even if the suspect refuses to agree to for a house search.
In Hick vs State, police responded to a distress call from a neighbor who claimed Hick had fired shots to his house. Hick was a convicted felon thus he was not licensedto have a gun. When the police went to his house, he consented to a house search. After the police found some bullet shells, they arrested him and made a full house search. On re-entry,they searched the entire house and found a short gun in his bedroom. During the whole event, Hick remained nonviolent. He was later charged and convicted. He filed a motion in his appeal to have the evidence found in his bedroom be suppressed. The judges held that the evidence taken from the other room was after he was handcuffed thus he had no potential to harm anyone and therefore exigent circumstances were no longer justified and he had withdrawn his consent(Constitutional Law, 1949).
References
Warnken, B. Four Ways to Make Valid Fourth Amendment Intrusions into Houses: Search Warrant, Arrest Warrant, Exigency, & Consent. n.d SSRN Electronic Journal. http://dx.doi.org/10.2139/ssrn.1567623
Constitutional Law. Searches and Seizures. Evidence Obtained during Unlawful Search Held Inadmissible against Guest in House at Time of Search. (1949). Harvard Law Review, 62(7), 1229. http://dx.doi.org/10.2307/1336601