What is the warrant requirement?

0:04Warrants are court orders or orders issued by some government official, saying that the person who's serving this court order can go in the place that the warrant describes, and take away the evidence that the warrant says can be taken away. Let's take an example. Let's imagine it's a narcotics case where the government thinks there's drugs hidden inside a home. The government can get a warrant to search the home for the drugs, and so a warrant would be the judicial authorization that they can do that.

0:33The enactment of the Fourth Amendment was really motivated by some disputes about how broad can warrants be. In the 18th century, some English judges were authorizing what were called general warrants. That would be kind of a court order that said, whoever has this order, they're allowed to go wherever they want to go, wherever they think the evidence might be and to take anything they think might be relevant. It was really opposition to that practice of general warrants, warrants that were just too broad that led to the enactment of the Fourth Amendment that basically was saying no general warrants when a court order is issued, it's got to be more narrow than that. Probable cause is basically enough cause. The Supreme Court today refers to this as a fair probability standard to believe that there's evidence to be located,

1:19to be found in the place where the warrant is going to be executed. Here's the basic idea if the government's going to get a warrant, they're going to break into someone's house or break into their car or arrest a person. That's going to be pretty invasive. They're not allowed to do that unless they can show to the judge. There's enough reason to think this is going to work. There's actually going to be the evidence we're looking for and the place to be searched in order to get that court order.

1:43So no court order is based on a hunch. They've got to have pretty good reason to think that evidence will be there in order to get a valid warrant. Some searches and seizures are reasonable without a warrant, the Supreme Court has said. But nonetheless, with probable cause, other kinds of searches and seizures are reasonable, even in the absence of probable cause with a lesser degree of suspicion, the Supreme Court sometimes calls reasonable suspicion. So the idea is that usually the government can execute a search with a valid search warrant, but sometimes they can actually execute a search without a valid search warrant as long as they have some amount of cause or reasonableness to that kind of search. So U.S. Supreme Court has really struggled with this question. I think a rough guidance would be that if it's a historical question, if it's something that was a rule in the 18th century or the 19th century,

2:32the Supreme Court usually says that that historical rule still applies, and a search in the absence of a warrant or probable cause is reasonable. An example of this would be there's a rule called search incident to arrest. If the government arrests someone based on probable cause, they ordinarily don't need a warrant, and they can search the person, that is their pockets, for example, to look for evidence or a gun, incident two, that is as part of that arrest, without a separate warrant. That's a rule that goes back to the 18th century, and the U.S. Supreme Court today has said, we keep that traditional rule. In other contexts, on the other hand, they say, Well, this is a new problem. We haven't had anything like this before.

3:13So we'll come up with a new way of balancing reasonableness. An example of this, there's something called the automobile exception to the warrant requirement. When the government wants to search evidence that might be located in a car, they need probable cause to believe the evidence is in the car, but they don't need a warrant. The Court has reached this result essentially by balancing the government's interest and the individual's interest in coming up with what the Supreme Court says is a reasonable balance.