Process to get a search warrent
There are a series of steps that police are supposed to follow in executing a search warrant and they generally include:. Call us anytime at and one of our lawyers will be happy to provide assistance.
Marshall Colin E. Bonus Esq. NJ Law: Issuance and Execution of a Search Warrant How a Warrant is Issued In order for the police to obtain a search warrant, the applicant must appear before a judge and must present facts, either through direct testimony or an affidavit, that establishes grounds for issuance. Police may then enter the premises and locate those persons who are to be searched or arrested pursuant to the warrant.
The general rule is that police may not arrest or search anyone who is not named in the warrant. If any person is confined under such circumstances that the confinement amounts to an offence, a search warrant shall be issued for the person so confined.
This has been provided by section The law usually makes an exception for hot pursuit as Section of the code has been enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower police officer to carry out searches without first applying to the courts for authority.
The police can enter your private residence or office without a warrant, but only under very limited circumstances. Hence, no question of violation of Article 19 is involved.
Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20 3 of the constitution. Unless the fact-pattern fits one of the exceptions discussed above, a warrant is required to police to conduct a search.
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However, in reality, police in India is known to use the power given in Section in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section , police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.
It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under Section They can also arrest you for obstruction of a police officer, which is an offence. At best, you may demand that a police office be present during the search. You can also demand that respectable civilian people in the area be present during the search.
Criminal Law Search and Seizure Frequently Asked Questions :: Justia
Also, the police should prepare a seizure list and make you sign the same. The real danger is that one may plant evidence against you during a search and police may use this against you in a case. This is why, if possible searches should be video recorded.
If search is not video recorded and it appears that evidence has been planted against you — the best recourse you have is in the court of law, and it is unlikely that you will be able to reason with the police. It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises. LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities.
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