One of the greatest fears with allowing cops to search your house is the (very good) chance that they will tear your place apart. We have all seen images of police tossing pillows and couches, upending furniture, and making a huge mess of things. That is not the way police should be executing a search warrant in anyone’s home.
Going back to the text of the Fourth Amendment, recall that it expressly says that
. . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The police are required by the Fourth Amendment to take that language seriously. The warrant that the police obtain from the judge will not be signed by the judge unless it particularly describes “the place to be searched, and the . . . things to be seized.” In lawyer terms, that part of the Fourth Amendment is called the specificity requirement.
With the specificity requirement, there are two distinct elements:
The “particularity” element requires that the warrant must clearly state what the police are looking for, which is meant to avoid the very wide-ranging, search-through-everything approach that we all fear. The “breadth” element requires that the search is limited by the probable cause upon which the warrant is based. Given the consequences of leaving the police to their own devices, those two elements of the warrant are intended to take away any discretion on the part of the cops.
Here it is helpful to give context to the above principles with some examples. If the police are looking for a stolen car and they suspect that the car might be in your garage, then they will file a warrant application for a judge’s signature. The police in this case must specify not only the address of the search, but where at the address the cops intend to find the evidence of crime.
Assuming the police obtain a warrant to search your home for the stolen car, it is a function of both the “particularity” and “breadth” elements that the police cannot search in your desk drawers, your closet, or your nightstand. Why? Because a car will never fit in one of those areas. Stated differently, the police can only search in places where the item is likely to be found. So, police are going way beyond the scope of a warrant if they are searching for a car but choose to rummage through your bathroom medicine cabinet.
On the other hand, in the typical drug case, drugs and drug paraphernalia (such as scales, ledgers, and notebooks) are likely to be found in places like desk drawers, under the mattress, and in bathroom cabinets. Accordingly, because of the nature of the crime being investigated the scope of the search warrant will differ from the scope of a warrant in a stolen car case.
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