The warrant and probable cause requirements
If government agents conduct a nonconsensual search or seizure, as described in the previous chapter, the Fourth Amendment is implicated and the conduct must be “reasonable.” A search or seizure authorized by a valid warrant based on probable cause is almost always reasonable. Of course, as the next chapter details, the absence of a valid warrant does not necessarily make the police conduct unreasonable; in fact, the “vast majority” of searches and seizures are not authorized by a warrant.1 However, when a police search or seizure is particularly intrusive, as with an arrest in or search of a home, a warrant tends to be required, because these are situations in which the Fourth Amendment’s reasonableness standard should be most demanding.
The warrant is seen as the preeminent protection afforded by the amendment because, as Justice Robert Jackson put it, the warrant process ensures that the inferences that justify the search or seizure are “drawn by a neutral and detached magistrate” rather than “the officer engaged in the often competitive enterprise of ferreting out crime.”2 To obtain a warrant, an officer must prepare an application, a supporting affidavit, and often a draft of the warrant itself, and then submit the paperwork to a judge; although officers can find this process “burdensome, time-consuming, intimidating, frustrating, and confusing,”3 they often seek help from prosecutors and, in most jurisdictions, can file the warrant telephonically, which reduces the effort and time required.4 While a study of warrant practice in seven cities...
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