C. Exceptions to the Warrant Requirement in Cases Involving Computers
In addition, the affidavit shall contain a statement that consent to inspect has been sought and refused or a statement setting forth facts or circumstances reasonably justifying the failure to seek such consent. Owner-occupied family residences are exempt from the provisions of this act. Such inspection warrant must be executed and returned to the judge by whom it was issued within the time specified in the warrant or within the extended or renewed time. After the expiration of such time, the warrant, unless executed, is void.
An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judge may expressly authorize a forcible entry when facts are shown which are sufficient to create a reasonable suspicion of a violation of a state or local law or rule relating to municipal or county building, fire, safety, environmental, animal control, land use, plumbing, electrical, health, minimum housing, or zoning standards which, if such violation existed, would be an immediate threat to health or safety or when facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful.
When prior consent has been sought and refused, notice that a warrant has been issued shall be given at least 24 hours before the warrant is executed.
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Immediate execution of a warrant shall be prohibited except when necessary to prevent loss of life or property. Contains a plant pest;. Is located in an area that may reasonably be suspected of being infested or infected with a plant pest due to its proximity to a known infestation, or if it is reasonably exposed to infestation;.
Contains animals affected with any animal pest or which have been exposed to and are liable to spread the animal pest; or. Contains any other property that is liable to convey an animal pest. The trial court judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of one or more agriculture warrants, shall issue such agriculture warrants with his or her signature and office affixed thereto. Such agriculture warrants may be served and executed by employees of the department, with the assistance of third parties supervised by department employees, and shall authorize department employees with such assistance to undertake all actions authorized by the warrant.
At the time of execution of the agriculture warrant, a copy, including any applicable renewal or extension thereof under subsection 8 , shall be delivered to a person 18 years of age or older who is occupying or living on the property subject to the warrant or shall be attached to a conspicuous place on that property.
It was clear what the conditions were for a valid warrant—those conditions are spelled out in the Fourth Amendment's text.
Amendment IV: Warrant Clause
It was not clear whether warrants were ever required though they probably were not , because the issue had not arisen with any regularity. Today's Warrant Clause doctrine differs from the historical understanding in some important respects. That doctrine can be divided into two parts. The first deals with the conditions of a valid warrant.
The second deals with when warrants are required. The conditions of a valid warrant are straightforward: with two qualifications, Warrant Clause doctrine tracks the Fourth Amendment's text. Probable cause and particular description are required, as the text says.
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So is something not mentioned in the text: early on, American courts decided that warrants should be issued only by judicial officers in most jurisdictions, that means magistrates and not by anyone in the prosecutor's office or the executive branch of government more generally. The other qualification concerns probable cause. The Supreme Court has approved warrants not based on probable cause in some regulatory settings. Thus, in Camara v. Municipal Court , housing inspectors were allowed to use what the Court called "administrative warrants"—orders authorizing the random selection of some buildings for code inspection.
Such administrative warrants are sometimes used, as in Camara , to enforce building and fire codes, but not for much else. The police are not allowed to use administrative warrants when enforcing criminal law. The justification of this state of affairs is that police officers investigating crime tend to have more power than other government officials: the police can break down doors, use force even deadly force to subdue suspects, and, in some cases, they may destroy suspects' property if that is a necessary consequence of the search for evidence.
Other government officials tend not to have those powers. Consequently ordinary citizens tend not to find a building code inspection as frightening as a police search or arrest. The distinct legal requirements reflect those differences in official power and in the fear that such power inspires.
Searches Made without a Warrant
The second issue, when are warrants required, is more complicated. In summary, warrants are required when the police search a home or an office, unless the search must happen immediately, and there is no opportunity to obtain a warrant. Warrants are also required for wiretaps—a special category covered along with most computer searches by federal statute. Outside those categories warrants are almost never required. There is a slightly more elaborate way to put the point.
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Until recently the Supreme Court said that warrants were required for all searches and seizures, save those that fell within some exception to that requirement. The classic statement of this rule, and the classic defense of a broad warrant requirement, was penned by Justice Robert H. Jackson in Johnson v. United States Today, the Court uses different language, emphasizing not the second half of the Fourth Amendment's text, but the first the ban on "unreasonable searches and seizures".
See Indianapolis v. Edmond Notwithstanding this change in legal rhetoric, the old categories, a warrant requirement with a list of exceptions, still exist. The scope of the requirement is defined by the many exceptions to it. The major ones are these:. Exigent circumstances. The police need not get a warrant when doing so is practically impossible.
Arrests outside the home.
The police must have probable cause to justify the arrest, but they need not have a warrant. 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 though not the trunk. Inventory searches. The police may seize any belongings the arrestee has in his possession at the time of arrest including his car , bring those items back to the police station, and make a record of them and their contents. Cars, including their trunks, may be searched without warrants, as long as the searching officers have probable cause.
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. In addition to these exceptions, there are several categories of searches that involve government officials other than police officers e. Such searches generally do not require warrants. That list of exceptions and special categories aside, other searches and seizures do require warrants.
Notice, however, that the major categories of searches and seizures that do not appear on the above list are searches of homes, arrests within homes, searches of private offices or other privately owned buildings other than for fire inspection and the like , and wiretaps. The overwhelming majority of search and arrest warrants are issued in such cases because, apart from such cases, warrants are almost never required. A generation ago those propositions were widely contested; the scope of the warrant requirement was the subject of a great deal of litigation, including a number of Supreme Court decisions.
That is no longer the case. Today Fourth Amendment litigation focuses on warrant less searches and seizures.
The Searches and Seizures Clause—the first half of the Fourth Amendment's text—is now the primary source of Fourth Amendment litigation and commentary. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jur The Heritage Guide to The Constitution. Facebook Twitter Share. Further Reading Thomas Y. Case Law Wilkes v. Wood, 19 How. Carrington, 19 How. Gates, U. United States, U. Municipal Court, U. Edmond, U.