How would you distinguish between arrests and searches and seizures with and without a warrant, and which form is best? Provide examples of each

Question

What will be an ideal response?

Answer 1

A search with a warrant occurs when a neutral magistrate has determined, after receiving information from a sworn affiant, that probable cause exists to believe that evidence of a crime is possessed by a specific person or is at a specific location, and has issued a search warrant. An example of a search with a warrant would be a situation in which a police investigator interviews victims and witnesses to a crime and gathers evidence that provides probable cause which may be presented to the magistrate.

There are five types of warrantless searches that may be conducted. These include searches incidental to lawful arrest, searches during field interrogation, searches of automobiles that are carried out under special conditions, seizures of evidence in “plain view,” and searches when consent is given. An example of a warrantless search would be a case in which a police officer, acting on information about a crime, observes a vehicle and occupants matching the description of the accused offenders; the officer cannot pull the vehicle over and then ask the occupants to wait while he or she obtains a search and/or arrest warrant. Thus, exigent circumstances allow the officer to search the suspects and their vehicle without a warrant.

An arrest with a warrant involves a situation in which the officer, or a citizen, swears in an affidavit that he or she has certain knowledge that a particular person has committed an offense. For an arrest warrant to be issued, a neutral magistrate must agree that probable cause exists. An example of this might be if a police officer gathers physical evidence or interviews witnesses or victims and determines that probable cause exists to believe that a particular person committed a specific crime. An arrest without a warrant requires two elements: the officer must have probable cause and there must be exigent circumstances. The above example of a warrantless search would also apply to the issue of a warrantless arrest; if the officers conduct a warrantless search and find contraband, they have probable cause to may make an arrest without a warrant.