Presumptions Related to Warrantless Searches

Overview of 4th Amendment Presumptions

When thinking about the 4th Amendment, it is important to understand certain presumptions attach to warrantless searches.  That is, if officers conduct a search or seizure without a warrant, it is “presumed” to be unreasonable – that does not mean such a search is unreasonable, law enforcement just has the burden to prove the warrantless search was reasonable … even if the search falls within a well-defined warrant exception. 

In the same regard, searches done pursuant to a warrant are presumed to be reasonable.  As courts want to encourage the police to seek judicial approval for a search, concepts like good faith and a Gates probable cause review (to be discussed later) arise from a judicial policy encouraging search warrants.  The difference in the presumptions is basically who has the burden to present evidence and convince the court as to the reasonableness of the search or seizure.

Practice Tip

There have been several occasions where a warrant was not required to do a search, but I sought one anyway.  For instance, warrants are rarely if ever required for the search of a vehicle if the officer has probable cause (again, there will be an in-depth focus on this in a subsequent post).  But I have sought and obtained warrants for the search of a vehicle involved in a first degree murder.  As a potential death penalty case, it may be easier to obtain the warrant than to prepare and litigate the validity of a warrantless search of the vehicle – which certainly be attacked in a death penalty case. 

Legal Supplement

Katz v. United States, 389 U.S. 347 (1967),

[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.

Bumper v. North Carolina, 391 U.S. 543 (1968),

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.

Payton v. New York, 445 U.S. 573 (1980),

It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable.