April 27, 2014
You have to reign in your natural hunter’s instinct and take the time to get a search warrant. There’s the affidavit of probable cause to compose, the warrant form to fill out, maybe a review by the local prosecutor, and then finding a magistrate to submit the package to for approval. It’s a hassle.
But it’s a hassle the Constitution imposes, if your investigation has led you to a residence, garage, barn, outbuilding, warehouse, office, storage locker, package, vehicle, boat, or other place protected by the Fourth Amendment. The constitutional protection “against unreasonable searches and seizures” has been interpreted by the U.S. Supreme Court to mean that a search warrant is necessary to make searches and seizures “reasonable” unless the circumstances justify application of one or more of the recognized exceptions. (Katz v. U.S.)
Because warrantless searches and seizures are presumed to be unreasonable, the general rule-of-thumb is to try to get a warrant whenever possible. On the other hand, if you can seize evidence without engaging in a search, you don’t need either a warrant or any exception. Therefore, the initial inquiry in determining whether you need a search warrant is whether you can seize the evidence without making a “search.”