Searches Made Without a Warrant
What Kinds of Searches Can a Police Officer Conduct When There Is No Warrant?
- Frisk Search - In the interests of safety, a police officer is permitted to briefly frisk a person's outer clothing for weapons. When frisking a person's outer clothing for weapons, the police may feel other items that raise their suspicions. However, the officer can only legally search inside the pockets if he feels a weapon, unless of course it is a search incident to arrest or you give consent (see Consent Searches and Search"Incident to Arrest"). If the officer then finds something illegal, i.e. drugs, the search is legal, and the officer can legally arrest you.
- Consent Searches - A consent search occurs when a person in control of the premises "freely and voluntarily" gives the police his consent to conduct a search. While the police have no obligation to inform people that they can refuse consent searches, they cannot coerce, trick, or intimidate someone into giving their consent to search. If an officer asks: "May I come inside and look around," you can always refuse the officer unless he has a warrant to search your home.
- Plain View Doctrine - If the police are lawfully in a specific area, they do not need a search warrant to search for and seize evidence that is in plain view. For example, if an officer is lawfully standing inside a person's house and sees a marijuana plant in the living room, the officer can seize the plant, and arrest the owner.
- Search "Incident to Arrest" - Police officers do not need a warrant to search after arresting someone. The officer may search the person, and the person's surroundings. As a general rule, the police may search a suspect and the area within that suspect's immediate control. Although state interpretations of the area of immediate control may vary, anything within the suspect's physical reach is generally fair game.
- Search of a Motor Vehicle "Incident to Arrest" - Police officers do not need a warrant to search the passenger compartment of a motor vehicle if the person they arrest was a "recent occupant" of that vehicle. State laws vary in their interpretation of what constitutes a "recent occupant" of a vehicle.
- "Protective Sweep" following an Arrest - After an arrest, police officers may search for hidden accomplices by walking through a residence and making brief visual inspections. However, police must justify this search with a reasonable belief that a dangerous accomplice is hiding in the residence. Provided that the protective sweep is valid, police can also seize evidence in plain view. During this type of search, the police may not look into containers that are too small to hide a person.
- Emergency Exceptions - Police generally do not need warrants to make searches when time restraints make it impractical. That is, when the time it would take to get a warrant would endanger public safety or risk the destruction of important evidence, a police officer may conduct a search without a warrant.
What Can You Do if You Have Been Subject to an Illegal Search and Seizure?
A criminal lawyer can help you navigate through the complex legal system and restore your privacy rights. Since every search is unique, a qualified attorney will be able to evaluate the legality of the search.
Consult a Lawyer - Present Your Case Now!
Last Modified: 09-23-2011 11:52 AM PDT
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