Differences Between Search Warrants and Arrest Warrants

A warrant is a specialized legal document that is issued and signed by a judge. Warrants authorize the police to conduct searches, seizures, and arrests , depending on the type of warrant it is. A judge may only issue a warrant upon a showing of probable cause. Probable cause is the standard which courts apply to police requests for a warrant for the arrest of a suspected criminal or a warrant to search a place for evidence of crime.

A judge may only issue an arrest warrant when there is probable cause, which is reason to believe that the person identified in the warrant has engaged in criminal activity. In the case of a search warrant, probable cause is reason to believe that evidence of criminal activity can be found on the premises to be searched.

Police officers obtain both search and arrest warrants by providing a judge or magistrate with information they have gathered, which shows probable cause. Law enforcement usually provides the information to the judge or in the form of written statements made under oath to tell the truth. These statements are called “affidavits.”

Affidavits should report observations made or other information acquired by the law enforcement officer who writes it or the observations of a private citizen or police informant. In many localities in the U.S., a magistrate is available 24 hours a day to consider warrant applications and issue warrants. In some jurisdictions, for the affidavit to be legally valid, the officer who writes it must swear to the statement in front of an authorized person, such as a notary public or a county clerk.

1. What Is the Purpose of an Arrest Warrant?
2. What Is the Purpose of a Search Warrant?
3. What Do Arrest and Search Warrants Have in Common?
4. What Are the Differences Between Search Warrants and Arrest Warrants?
5. Do I Need the Help of a Lawyer with Warrant Issues?

What Is the Purpose of an Arrest Warrant?

An arrest warrant is a specialized legal document issued by a judge or magistrate that authorizes law enforcement to take a person suspected of a crime into custody and detain them.

To obtain an arrest warrant, the police must reasonably believe this person has engaged in criminal activity. The person may be a specific, named individual (e.g., “John Smith.”). Or, in cases where the police do not know the identity of the individual, the warrant must describe what the person looks like, for example, “about 6’2”, gray hair, and wears glasses.” The description must allow officers to identify the intended person and not mistake them for someone else. So, the warrant might also include a place where the person can usually be found.

The Fourth Amendment to the U.S. Constitution specifically requires that warrants “particularly describe” the person who is to be seized or the place to be searched. If the description contains enough detail to allow officers to determine who the intended subject is, the warrant could still be valid even if it does not include a name.

Once the police have the warrant, they may locate and arrest the person. And after the police have arrested a person, they then have the authority to search the person and the immediate vicinity around the person. This search is considered an exception to the requirement that a search be conducted only with a warrant. It is called a search “incident to arrest,” also known as an “arrest search.”

What Is the Purpose of a Search Warrant?

A search warrant allows the police to search a place for evidence of criminal activity. The search warrant must identify and describe that evidence, as well as the places in which it may reasonably be found. Physical evidence of criminal activity may be found in any of the places where people store things, e.g., in a home, a storage locker, or an automobile. The scope of any search, however, is limited to the specific evidence sought and locations that are identified in the warrant.

Generally, search warrants must be executed during the day; special authorization is needed for nighttime execution of a search warrant. And the police must knock on the door to the premises when they arrive to do their search and announce their identity and purpose. If the police want to avoid this step, they need to have the special authorization of a “no-knock” warrant.

What Do Arrest and Search Warrants Have in Common?

The most important thing that search and arrest warrants have in common is that both must be supported by probable cause. In the case of an arrest warrant, probable cause is a reasonable or plausible belief that the person whose arrest is sought has committed a crime. In the case of a search warrant, probable cause is a reasonable belief that there is evidence of criminal activity, and that this evidence may be found in a particular location.

Both arrest and search warrants must be issued and signed by a neutral individual, either a judge or magistrate. Both arrest and search warrants must be executed or performed in a reasonable manner. Basically, this means that the scope of a search or an arrest may not exceed what is authorized in the warrant.

For example, an arrest warrant may authorize the arrest of a person named “Chauncey Jones,” who resides in a particular apartment. The arrest warrant is executed unreasonably when the police attempt to arrest any other person named Chauncey Jones. Only the Chauncey Jones who is reasonably believed to have committed a particular crime identified in the warrant can be arrested.

Likewise, a home or other place must be searched in a reasonable manner. A search warrant must specify the evidence for which the police are searching, and the scope of the search is limited to places in which the evidence might be found, and not in places where it clearly could not be.

What Are the Differences Between Search Warrants and Arrest Warrants?

There is an exception to the requirement that police have a warrant to arrest a person and several exceptions to the requirement that police have a warrant to search a place for evidence of a crime.

In the case of an arrest warrant, if a person commits a crime in the presence of an officer, the officer can arrest the person without a warrant.

In the case of a search warrant, the exceptions are more numerous. They are as follows:

• Consent: A person can consent to a search, and if they do, the police can capitalize on that consent and conduct a search to the extent it is consented to by the occupant of a house or other space, e.g., an office or shop;
• Search Incident to Arrest: When the police arrest a person, they are allowed to conduct a search of the person and the area around the person and within the person’s immediate control. If they find evidence of a crime on the arrested person or within the area they are allowed to search, they may legally seize it;
• Plain View: If a police officer has a right to be in a certain place that he would normally need a warrant to search. While in the place, the officer sees evidence of criminal activity in plain view. Per the plain view exception to the warrant requirement, the officer may seize the evidence;
• Hot Pursuit: As mentioned above, if a person commits a crime within the presence of law enforcement and then flees, law enforcement can pursue the person. If the suspect enters a home or other place in order to escape the officers who are in pursuit or to hide there, the police may pursue the suspect into the home or other place, even though they do not have a warrant to search the premises. Or, if there is probable cause to believe a suspect has hidden themselves in a place, the police may search that place for the suspect.
  • Once inside, the police might see evidence of criminal activity in plain view, which they can then seize pursuant to the plain view exception. Or, they might search the suspect incident to the arrest, which might lead to the discovery and seizure of evidence;

  Another difference is their expiration date. Search warrants come with an expiration date. A search warrant is usually valid for a few days to several weeks. Once they have expired, they are no longer valid, and the police must obtain a new one if they still have not seized the evidence they need.

  Arrest warrants usually do not expire. So, for example, a warrant might be issued for a person’s arrest, but the person might not be arrested within days, weeks, or even months of the date the warrant is issued. The person might go into hiding, or flee to another state or country. Still, the arrest warrant remains in the criminal justice system’s computers.

  If the person is stopped for a moving traffic violation at some time, the officer who has stopped the person may discover through a computer search that there is an outstanding warrant for their arrest. The officer may then execute the warrant even if the crime on which the warrant is based is completely unrelated to the reason for the traffic stop.

  Do I Need the Help of a Lawyer with Warrant Issues?

  If you believe that a search or arrest warrant has been issued without probable cause or was executed in an unreasonable manner, you should contact a criminal defense attorney. An experienced criminal defense attorney near you can analyze the facts of your case. The attorney can assist you in preparing a defense to any crimes with which you have been charged and make the appropriate response to any illegality in your arrest or in searches of your property.

  The attorney can also represent you at hearings and at trial, if that should become necessary. Issues connected to warrants can be technical, and it is best to have the help of an experienced criminal defense attorney.

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