The following article was authored by Shawndria McCoy, a Raleigh NC attorney. More information about Shawndria can be found on her LinkedIn profile. She can also be contacted at 919-307-5624.
The information provided here is only offered as a general summary of search warrants in North Carolina. The topic of search warrants is very comprehensive and this summary is not intended to cover all aspects of search warrants. Consult an attorney for more detailed information pertaining to your specific situation.
The North Carolina Constitution, United States Constitution, and various statutory laws govern a police officer’s execution of a search warrant. A search is an intrusion into a person’s reasonable expectation of privacy. This is fancy legal jargon, which means interfering with a place or thing in which a person reasonably expects to be their private place or thing. The amount of expected privacy depends on the place. You will not have the same expectation of privacy in your backyard as you would your wallet or purse. Although police officers have great discretion in determining whether to charge someone with a crime, they do not have wide discretion in searching a person or their property. The Fourth Amendment to the United States Constitution prevents unlawful searches and seizures without a warrant. A warrant must state and describe with particularity the place or person to be searched and the items to be seized and must be based on probable cause that a crime has been committed by the named person. The Fourth Amendment and statutory provisions strive to protect an individual’s privacy rights.
What is a Search Warrant?
A search warrant is a court order directing a law enforcement officer to search a particular person, area, vehicle or property for specific items detailed in the order and to produce them to the court. The warrant must describe the exact items to be seized or the warrant will be invalid.
Process of Obtaining a Search Warrant
The officer presents to the magistrate and gives written testimony under oath evidencing he has probable cause to believe a crime is occurring or has occurred. Probable cause may be established from affidavits of an informant, which must be incorporated into the warrant. Warrants are issued by a neutral and detached magistrate (meaning, they do not have any involvement in or bias towards the individual or the case) upon information provided by the police officer, which must be based on probable cause. The information the police officer provides to the magistrate to obtain the search warrant must be relatively recent information, and cannot be based on old, “stale” information.
Execution of the Search Warrant/Scope of the Search
Probable cause must exist at the time the search warrant is issued AND at the time it is executed, otherwise the search is not valid and will be held to be unconstitutional. In NC, a properly issued search warrant must be executed within 48 hours after it has been issued. However, in federal court, there is no specific time limit for the execution of a search warrant. If the warrant becomes void, the officer will need to apply to the magistrate for another search warrant. The search may only occur in places specifically stated in the search warrant and where the contraband is likely to be. For instance, a police officer cannot search under a person’s bed for a stolen television, as it is not likely or possible that a television could be hidden underneath a bed. The search must be limited in scope or duration based on the type of contraband the officer is seeking. If the contraband is small, a more thorough and in depth search may be warranted; however, for larger items, the search may be shorter and more limited. The police officer may detain any person present at the time of the search in order to prevent evidence from being destroyed and for officer safety. Once the officer locates the contraband then the search must seize. If, during the search, the officer accidentally finds other contraband then he or she may seize that contraband as well. Following the previous television example, if the officer is looking in a closet for a stolen television and inadvertently sees drugs, he may lawfully seize the drugs. The key factor in the execution of search warrants is the reasonableness of the search.
“Knock and Announce” Rule
Pursuant to statue, NCGS § 15A-249, an officer must knock and announce his presence before he enters the residence or building to conduct a search. The purposes of this rule are safety of the officer and those in the residence so as not to take anyone by surprise, to prevent evidence from being destroyed, and to protect the occupants’ privacy. In an emergency situation, officers are not required to “knock and announce” and failure to do so would not constitute a violation of one’s Fourth Amendment rights. Moreover, an officer is not required to knock and announce if they reasonably believe it would be futile or would result in danger to their life or the life of others. This rule applies to both arrest and search warrants.
Presence of Third Parties During A Search
If others are present during a search, the officer may detain them there while the search is being conducted so that evidence is not destroyed and for officer safety. However, police may not bring the media or other persons to the place of the search, unless the third party is there to aid in the execution of the search warrant.
Exceptions to Search Warrant
A police officer may search without a warrant in an emergency situation, if he has reasonable grounds to believe the person suspected of committing a crime is likely to escape, there is concern for a person’s life or safety, or there is concern that evidence is about to removed or destroyed. Another alternative to an officer possessing a search warrant is consent of the person whose person or premises is to be searched. Moreover, a police officer is permitted to arrest without a search warrant for a misdemeanor or felony crime committed in his presence as well as for a felony not committed in his presence if there were reasonable grounds for making the arrest. If the police lawfully impounds a car, they may conduct an inventory search without probable cause or a warrant only to safeguard the defendant’s property and to protect the police against false claims of theft.
Police officers may search an automobile without a warrant if the officer has probable cause to believe there is contraband in the car or if there is an emergency situation requiring an immediate search. The pu
rpose of this rule is that the car will likely be gone or evidence destroyed if the officer takes the time to go and obtain a warrant.
As it relates to searching a person, a police officer may search a person once the person has been taken into custody (arrested) so long as the arrest is lawful. However, the search must still be reasonable.
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