Go Get A Search Warrant and Then We’ll Talk.
Picture this – You’re sitting at home minding your own business when you hear vehicles pull into your driveway. As you stand up from your chair and head to the window to see what is going on you see several people dressed in police uniforms rush by to get in position around your home. Your head is spinning trying to figure out what is going on and what you could have done to bring about such a police presence. KNOCK, KNOCK, KNOCK – “police we have an arrest warrant.”
As they pile through the door you finally learn that they’re not here for you, they’re here for a friend of yours that crashed on your couch for a few nights four months ago. Too late, though, you think, they are already in and searching the entirety of your house looking in every nook and cranny in which a person might jam themselves into. And then it really takes a turn when they discover a usable amount of marijuana your buddy stashed in a cabinet in the hall bathroom. CLICK, CLICK, CLICK – now you’re in state certified bracelets in the back of a squad car headed down to central booking head still spinning.
Is this right? Can they really do this? Turns out, they cannot.
The Fourth Amendment
The Fourth Amendment provides that entry into a home to conduct a search or an arrest is per se unreasonable unless done pursuant to a warrant.[1] Warrants are a necessary safeguard between the citizens and overzealous police officers. An officer must first procure a warrant from a neutral and detached magistrate based upon probable cause. So, before any officer can ever set foot inside your home they must first go through a magistrate and prove what they are searching for is there.
That’s all well and good, but what about the above situation in which the police come to your house in search of someone else armed with only an arrest warrant?
“While an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ. An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure. A search warrant, in contrast is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.”[2]
What Warrants Can & Cannot Do
It all depends, then, on what the warrant authorizes the police to do. In the above scenario, the warrant protected your friend’s interests from an unreasonable seizure because a magistrate authorized the police to seize your friend based upon a probable cause finding. Your interests, on the other hand, were left unprotected because the officers had only their personal, subjective determinations of probable cause to rely upon. This is an insufficient safeguard meaning the police had no justification to enter your home in search of a third-person without first procuring a search warrant.
Simply put, the police cannot perform a search of your residence looking for a third-party armed with only an arrest warrant for that individual. They must have a search warrant on top of the arrest warrant because the arrest warrant does not protect your interests – only those of the third-party the police hope to find at your home.
Now there is a caveat to this rule. If an officer has “reason to believe” that the subject of the arrest warrant resides[3] at a given location, even when that location is not the individual’s actual residence, the officer does not have to obtain a search warrant. Instead, the officer that obtained the arrest warrant may determine on her own that the suspect “is probably within certain premises” and perform the search pursuant to the arrest warrant.[4]
This muddles things up a bit but it is actually quite simple. If there is evidence based upon an investigation that a person resides at particular place then the police do not have to get both an arrest warrant and a search warrant. However, if there is no such evidence then the police must get both.
In the end, the police may not use just an arrest warrant to enter your residence in search of a third-party. Unless, of course, the police have reason to believe that the third-party lives with you. In that case, the arrest warrant alone is sufficient. But, if the third-party does not live with you then the police must procure a search warrant first.
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[1] Payton v. New York, 445 U.S. 573 (1980).
[2] Steagald v. United States, 451 U.S. 204, 212-13 (1981).
[3] United States v. Route, 104 F.3d 59, 61 n. 1 (5th Cir. 1997). See also United States v. Barrera, 464 F.3d 496, 502 (5th Cir. 2006) (“Route offers a standard for determining the amount of due diligence required to support a reasonable belief that a defendant lives at and is present within a residence.”).
[4] Route, 104 F.3d at 62.
