As old as the Bill of Rights, search warrants have become one of the most important investigative tools available to law enforcement. Well-established procedures also are designed to protect the rights of individuals against unreasonable searches of their property by the government.
Deputy Public Defender Alan Crivaro, who has litigated hundreds of cases involving search warrants and 4th Amendment rights, helped explain how the process works in the wake of the controversy surrounding Friday's search of Assemblyman Scott Baugh's Huntington Beach home.
What rights do people have who are subject to a search?
A person does not have the right to refuse a search warrant, but can fight its validity later in court, asking for return of the property or that the evidence be excluded. In some cases, a person may be able to receive restitution for any damage made during the search. Those who are subject to the search do not have a right to have an attorney present for the search, although the request is sometimes granted. There is nothing in the law that gives a person the right to film a search. Officers can prevent someone from acting in a way they believe interferes with their ability to serve the warrant.
How do authorities get a search warrant?
Before authorities can obtain a warrant, they must make a sworn declaration, or affidavit, before a judge saying what crime or violation they suspect has been committed, and what related evidence they believe might be found at a location. If the judge finds probable cause for the search, the warrant will be signed, authorizing authorities to search only listed locations for specified items. Usually warrants are served within 10 days of their approval, during daylight hours. In emergency cases, officers can seek a warrant by phone in a conference call with an on-duty judge and deputy district attorney.
What are authorities supposed to do when serving a search warrant?
Authorities, often police officers, parole agents or district attorney investigators, are required to knock on the door, identify themselves and announce what they are doing. Officers must be clearly identified as such, wearing uniforms or badges. After waiting a reasonable amount of time, officers can force their way inside a property for several reasons, including the belief that someone is arming themselves or destroying evidence. Usually officers only do a search when someone is home. Once inside, officers can detain people, even visitors, requiring them to stand aside while the search is made. If officers find evidence of a crime, they can make arrests on the spot. And under the 4th Amendment, officers can seize the items they believe are related to the suspected crime or violation. Authorities do not have the right to go beyond the listed scope of the search, such as searching a car when only the house is listed on the warrant. The warrant must be returned to the judge within 10 days of its issuance, and include a list of any property seized.