The second half of the Fourth Amendment’s text is known as the Warrant Clause. The Warrant Clause states that warrants must be supported by an affidavit establishing probable cause, and it must describe both the location and objects of the search. The Warrant Clause is very clearly written and because the language is so plain it has not been the subject of much litigation.
The Warrant Clause litigation has been focused on two important questions that the text does not answer. The first question the litigation has tried to answer is what does probable cause” mean? The second question is are officers required to obtain warrants in order to carry out a search or make an arrest? The first question was answered by the case Brinegar v. United States, in Brinegar the Supreme Court defined “probable cause” as information that would lead “a man of reasonable caution” to believe “that an offense has been or is being committed.” The court refined the meaning of probable cause in the Illinois v. Gates case as “a fair probability.” In most instances probable cause means more likely than not and as with most standards the phrase probable cause has induced a lot of litigation. Most agree that probable cause means more than just a possibility, but less than a near-certainty. Whether warrants are ever required is a more complex question. Nowadays a warrant seems to be more foe than friend for the state but this was not always the case. When the Fourth Amendment was written an illegal search or seizure was punished by monetary damages. Because of the possibility of monetary damages against government officials, warrants were used by government officials as a defense against those lawsuits.
The Fourth Amendment began with three eighteenth-century cases. One from the colonies and the other two from England. The colonial case involved colonial smugglers having their property seized through writs of assistance which permitted the customs agents to search any place in which smuggled goods might be concealed. The searches could take place even if there was no particular suspicion the goods were there. Entick v. Carrington and Wilkes v. Wood were the English cases, and they involved critics of the government. The critics as we’ll call them were both arrested and all their books and papers seized by using warrants that named neither the suspects nor the places to be searched. The critics sued the seizing agents for trespass and won judgments in their favor.
The Fourth Amendment denied the use of general warrants and today that warrants should be issued only by judicial officers if probable cause can be established. The major excpetion is in a regulatory setting. Examples are housing inspectors being allowed to use administrative warrants that authorized the random selection of buildings for code inspection. Administrative warrants are mostly used to enforce building and fire codes, but not for much else. It is important to note that the police are not allowed to use administrative warrants when investigating crime. This is easy to understand when you realize that the police tend to have more power than other government officials. And by power, I mean access to force. The police can break down doors and often times are called to subdue suspects. Other government officials tend not to have those powers. When warrants are required is a more complicated issue. Unless the search must happen immediately, and there is no opportunity to obtain a warrant the courts have ruled that warrants are required when the police search a home or an office. Warrants are also required for wiretaps or for most computer searches. Warrants are almost never required outside of the categories listed above.
Like most complicated subjects when a warrant is required is defined by what it isn’t and not by what it is. The major exceptions to the warrant requirement are as follows:
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Exigent circumstances. The police do not need a warrant when doing so is practically impossible.
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Arrests outside the home. The police must have probable cause to justify the arrest, but they do not need a warrant.
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Searches incident to arrest. This means a search of the arrestee’s person and any baggage he or she may be carrying. If the person is in a car when arrested, the officer may search the passenger compartment of the car but not the trunk.
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Inventory searches. The police may seize any belongings the arrestee has in his possession at the time of arrest and bring those items back to the police station, and make a record of them and their contents. This includes the arrestee’s car.
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Automobiles. Cars, including their trunks, may be searched without warrants, as long as the searching officers have probable cause.
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Street stops and frisks. Officers are allowed to detain a suspect for a brief period, and to frisk him for weapons, given reasonable suspicion of criminal activity.
