In Arizona, a search warrant is a written order that allows law enforcement to search a particular place for evidence of a crime. The warrant is issued by a judge or magistrate, who must be shown that there is probable cause to believe that a crime has been or is about to be committed.
Not all legal searches require a search warrant. If a search was illegal, any evidence that it found can be suppressed and excluded from the trial.
A search warrant is issued by a judge or magistrate, who must be shown that there is probable cause to believe that a crime has been or is about to be committed.
1. What is a search warrant in Arizona?
A search warrant, like other warrants, is a court order instructing law enforcement to take a specific action. Search warrants tell the police to search a particular place for specific types of evidence.1 If the search discovers any evidence of a crime, the police can seize it so prosecutors can use it in the defendant’s court case.2
Arizona law requires search warrants to have the following information in them:
- the county where the warrant is being issued,
- the names of every person who has provided an affidavit to establish probable cause,
- the grounds for the warrant,
- where the search is to be conducted,
- a reasonably particular description of what is to be searched for,
- the date of the warrant’s issuance, and
- the signature of the judge or magistrate issuing the warrant.3
If the police officer requesting the warrant is not in the physical presence of the judge or magistrate, the warrant can be issued without the judge’s signature, so long as certain steps are taken.4
There are 6 possible grounds for a search warrant:
- the property to be seized was stolen or embezzled,
- the property was used to commit a crime or public offense,
- the person with the property intends to use it to commit a crime, or has given the property to someone else so they can hide it,
- the property is evidence that tends to show that a particular crime occurred or that a particular person committed the crime,
- the property is to be searched or inspected by an official for public health, safety, or welfare under a lawfully authorized inspection program, or
- the person sought has an outstanding arrest warrant.5
Unlike arrest warrants or bench warrants, suspects will not find a search warrant in public records or online databases that host public court information.
2. How do police get one?
Police get a search warrant by requesting one from an Arizona judge or a municipal court magistrate. This request has to be supported with sworn affidavits from witnesses or police officers that indicate there is reason to believe that there is a ground for issuing the search warrant. The magistrate will only issue the warrant if these affidavits establish probable cause.6
Generally, these affidavits will be in writing. However, the magistrate can take an oral statement under oath, so long as it is recorded.7
If the affidavits presented by the police do not give the magistrate probable cause, then the magistrate should not issue the warrant.8
Generally, warrants require law enforcement or peace officers to knock and announce their presence before searching for evidence.
3. How do police execute a search warrant?
Police execute the search warrant by searching the named location for the types of evidence it has listed.
Generally, warrants require law enforcement or peace officers to knock and announce their presence before searching for evidence. However, when requesting the warrant, if police make a reasonable showing that knocking and announcing would endanger someone or would lead to the destruction of the evidence listed in the warrant, then the magistrate can authorize a “no-knock” warrant.9
While executing a search warrant, police can break into a building, a room, or a vehicle when:
- they announced their presence but there was no response after a reasonable amount of time,
- they announced their presence and were refused entry,
- the magistrate authorized a no-knock warrant, or
- it was reasonable to believe that announcing the officers’ presence would endanger someone’s safety or would lead to the destruction of evidence.10
Police are allowed to seize anything that is listed in the warrant, or anything that is reasonably subject to seizure under the terms of the search warrant.11 They can also take photographs or collect more information during the search.12
While executing a search warrant, police can also search people or vehicles that are on the premises if it:
- is reasonably necessary to protect police or others from the possible use of a concealed weapon, or
- reasonably appears that someone is hiding something listed in the search warrant on their person.13
Private citizens are not allowed to execute a search warrant, unless they are helping a police officer.14
4. Can a warrant be invalid?
A search warrant can be invalid. If it is invalid, then the search can be illegal and in violation of the Fourth Amendment to the United States Constitution. Search warrants can be invalid if:
- police were not truthful in their sworn affidavits to establish probable cause,15 or
- the affidavits do not establish probable cause for a search.16
If a search warrant was invalid and it led to the discovery of evidence, then that evidence can be excluded from trial.
Additionally, if someone gets a search warrant that is not supported by probable cause and does it for the purpose of harassing someone, they can face criminal charges for a Class 2 misdemeanor.17
5. Do police always need a warrant to search for evidence?
No. While the general rule is that police in Arizona need a search warrant to search for evidence of a crime, the United States Supreme Court has recognized a handful of exceptions to this requirement. The most common exceptions to the warrant requirement are:
- the suspect consented to the search,18
- the evidence was found in plain view,19
- the suspect had no reasonable expectation of privacy where the evidence was found,20
- emergency or exigent circumstances required police to act in order to prevent evidence from disappearing or being destroyed,21
- police had probable cause to conduct a search, but no warrant and the search was restricted to a vehicle,22 and
- the search was incident to a lawful arrest.23
In the state of Arizona, it is up to law enforcement to prove that one of these exceptions was at play. If the prosecutor proves this by a preponderance of the evidence, then the search will be legal and the evidence that it produced can be used against the defendant.24
6. How can illegally obtained evidence be kept out of trial?
If police discover evidence by using an invalid warrant or by conducting an unreasonable search, that evidence can be excluded from trial. A criminal defense attorney from a local law firm can do this by filing a Motion to Suppress Evidence in superior court.25
This motion will trigger a suppression hearing. If the judge determines that the evidence was illegally obtained in an unlawful search, he or she will exclude it from trial. The prosecutor will not be allowed to use it against the defendant.
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Legal References
- Arizona Revised Statutes (ARS) 13-3911.
- ARS 13-3916(C).
- ARS 13-3915(C).
- ARS 13-1915(D) and (E).
- ARS 13-3912.
- ARS 13-3914.
- ARS 13-3914(C).
- ARS 13-3913.
- ARS 13-3915(B).
- ARS 13-3916(B).
- ARS 13-3916(C).
- ARS 13-3916(D).
- ARS 13-3916(E).
- ARS 13-3916(A).
- Franks v. Delaware, 438 U.S. 154 (1978).
- Illinois v. Gates, 103 S.Ct. 2317 (1983).
- ARS 13-3924.
- Schneckloth v. Bustamonte, 93 S.Ct. 2041 (1973).
- Coolidge v. New Hampshire, 91 S.Ct. 2022 (1971).
- Oliver v. United States, 104 S.Ct. 1735 (1984).
- Kentucky v. King, 563 U.S. 452 (2011).
- Chambers v. Maroney, 90 S.Ct. 1975 (1970).
- Riley v. California, 134 S.Ct. 2473 (2014).
- Arizona Rules of Criminal Procedure 16.2(b)(1).
- Arizona Rules of Criminal Procedure 16.2.