The Fourth Amendment to the Constitution of the United States protects the rights of people to be free from unreasonable searches and seizures. For the police to search a person’s home, a warrant authorizing the search is usually required. This warrant is called a “search warrant.” The search warrant is approved by a judge.
The warrant permits the police to search the house when there is probable cause (a fair chance) that the search will reveal evidence of criminal activity. Police may search a home without a warrant, when the law permits an exception to the warrant requirement. Exceptions include (among others) when evidence is about to be destroyed, or when the police are making an arrest.
What Information Must a Search Warrant Contain?
Search warrants must be particular. A search warrant must contain an address or a description of the premises or home to be searched. A warrant must specify what items the police have probable cause to believe they will find during the search.The warrant must be signed by an impartial, unbiased official. Such officials include neutral judges and magistrates.
How May the Police Conduct a Search?
Searches with a warrant must be reasonably conducted. This means the police may not enter into a different house where criminal activity is present. To conduct a search of another home, a separate warrant is required. Once the police arrive at the home, the search must be conducted reasonably. The police must typically knock on the door and announce their presence. Once the police enter, they may search any area of the house where the evidence of criminal activity may be found.
This means that if an area cannot possibly contain that evidence, it cannot be searched. For example, if the police suspect the theft of a large,flat-screen television, the police may not search the kitchen cupboards to locate the television.
When Can a Warrantless Search of a Home be Made?
The law permits searches of a home without a warrant (“warrantless searches”) to be made under several circumstances:
- The evidence the police seek is in their “plain view” or line of sight. If the police observe evidence of criminal activity in plain view, they may seize the evidence without a warrant.
- Evidence of a crime is in danger of being destroyed. Under the “evanescent evidence” exception to the warrant requirement, police may seize evidence that can be quickly destroyed, concealed, or degraded. Such evidence includes drugs that can be flushed down the toilet, fresh blood samples, and cash.
- The police are currently in “hot pursuit” of a suspect. When police are pursuing a fleeing suspect, the suspect may enter a home or residence to hide there. If there is probable cause to believe a suspect has taken shelter in a home, the police may search that home for the suspect.
- After a valid arrest. After making an arrest, the police can search the person of the arrestee (individual who has been arrested) for weapons. Such searches are permitted to ensure officer safety. If, when searching the arrestee’s person, the police discover evidence that can be concealed or easily destroyed, such as cash or drugs, that evidence may be seized.
- A homeowner consents to a search. The police, without a warrant, may knock on the front door and ask the homeowner if the police can search the home. If the homeowner consents, the search may be conducted. The search the police can conduct must not exceed the scope of consent. For example, if the homeowner allows a search of only the dining room, only that room may be searched.
Can a Co-Owner or Co-Occupant Give Consent to a Search?
Houses may be jointly owned or occupied. If one occupant is in the house and objects to the search, the other occupant may not “overrule” that occupant by providing their own consent to the search. However, if the occupant who objects to the search is not at the house when the co-occupant gies consent, the police may conduct the search.
Can the Police Search My Apartment Room or Area of the House When I Am Not Home?
Homeowners who rent a part of their home to a tenant may allow the police to search the “common areas” of the house. These areas include the kitchen, dining room, or any other area that both the homeowner and the tenant uses. Apartment landlords may permit the police to search common areas, apartment gyms, laundry rooms, and recreational areas that are shared by tenants. However, neither a landlord nor a roommate can authorize the search of your private room or space when you are not present.
What Happens if a Search is Improper?
If conduct a warrantless search improperly, or conduct a search with a warrant unreasonably, the law generally requires that the evidence obtained from the search be “suppressed.” This means that, since the evidence was obtained unlawfully, it cannot be used in a court proceeding against a criminal defendant.
Do I Need the Help of a Lawyer for a Search Issue?
If you believe you are the victim of an improper search, you should consult a criminal attorney. An experienced criminal lawyer near you can review the facts of your case. The attorney can assist you in preparing a defense, and in representing you in a criminal proceeding.