What Is the Difference Between a Warrant and a Warrantless Search?
Lawful searches, in accordance with the requirements of the Fourth Amendment to the U.S. Constitution, generally require judicially issued search warrants. However, warrantless searches may be deemed lawful and proper under a few well-established and specific warrantless search exceptions.
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The Facts
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According to "Criminal Justice in Action," similar to the number of arrests made without warrants, the majority of searches conducted by law enforcement are warrantless searches. The specific warrantless-search exceptions that permit warrantless searches are based on case law.
Types
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Search warrants generally are not required for searches based on consent, searches incident to arrest or in certain situations where exigent (or emergency) circumstances exist. In United States vs. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984), "exigent" circumstances were defined as: "Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."
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Considerations
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General factors examined by the courts to determine whether warrantless searches were proper and lawful include the existence of probable cause, the nature of the offense and the probability of possible destruction of important evidence.
Function
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Permissible exceptions to the search-warrant requirement allow law-enforcement officials to enter and search as long as facts are articulated that demonstrate a reasonable basis for the belief that someone was in jeopardy of serious physical harm, that contraband would be destroyed or that a suspect would escape apprehension. The scope of warrantless searches based on exigent circumstances is often limited.
Significance
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Evidence seized during warrantless searches is admissible in court as long as the search is deemed lawful and in accordance with one of the recognized and specific exceptions. Under the exclusionary rule, evidence obtained by unlawful, unreasonable searches can be suppressed and may not be used as evidence in a trial.
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