Situations in Which a Search Without Obtaining a Warrant
The need for warrant usually arises when law enforcement officials confront situations in which they need to respond to a myriad of ‘crisis’ under which police encounter might involve serious criminality (Decker, 1999).There are two types of warrants, arrest warrants and search warrants, although arrest warrants are rarely used or required. Although search warrants are often used, especially in cases where there is an extensive investigation, the Court has broadened the circumstances under which the police may conduct warrantless searches. This consideration is reflected in the Federal Rules of Criminal Procedure 41(c), which states, “It shall command the officer to search, within a specified period of time not to exceed 10 days” (Bloom, 2003, p. 91).In order to allow search warrants, judges or magistrates base their probable cause determination on sworn affidavits signed by police officers. This provides a written record if it is necessary to review the probable cause determination. A reviewing court will only review that information that was presented to the magistrate at the time the warrant was issued. Some jurisdictions, including the federal system, permit the issuance of a warrant on sworn oral communications, even if communicated by telephone. In this situation, the judge will place the person applying for the warrant under oath and record the conversation when possible and if it is not possible to record the conversation then the judge will create a longhand verbatim record. According to the Federal Rules of Criminal Procedure 41(c), the recording or the longhand record must be filed with the court (Bloom, 2003, p. 91). Since the government has to respond to the burden in hearings on warrantless searches, the police officers testimony serves as the beginning point for a trial courts consideration of the constitutionality of the police action (Larry, 1999).Although traditional search warrants are supported by probable cause, lower courts have supported the issuance of anticipatory warrants.