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What is a "Search" in Criminal Law?

In criminal law, a search is an examination of a person property, body, or an area that a person could reasonably expect to be kept private from law enforcement. The Fourth Amendment of the Constitution protects people from unreasonable searches and seizure.  Ordinarily, a police officer must have probable cause to conduct a search as well as a search warrant. 

Examples of When Police Need a Search Warrant

As stated above, the police need a search warrant to search for evidence in areas or in property wherein a person has a reasonable expectation of privacy. Case law establishes that these places include the following:

  • Homes, including but not limited to apartments, single-family homes, and even motor homes or house boats;
  • Certain parts of a motor vehicle, such as areas that are locked (like a trunk) or locked containers in a car, but this may vary by jurisdiction;
  • Hotel rooms
  • Certain public places such as bathroom stalls.

What is Consensual Search?

A consensual search occurs when a person gives the police consent or permission to search her or her property. If a person gives consent to a search, no search warrant is required, even if the person has a reasonable expectation of privacy in the place to be searched. For example, if police knock on the front door of a suspected criminal and asked the suspect if they can search his home for narcotics, and the suspect consents, the police can search the home without a search warrant.  Moreover, the police don’t even need probable cause if a suspect gives consent to a search.

Requirements for a Valid Consensual Search

In order for police to conduct a valid consensual search, the person whose property or person is being searched must voluntarily waive her Fourth Amendment rights. The waiver must be clear and unambiguous (“I’m revoking my Fourth Amendment rights”). The consent must also be done willfully and not under coercion. Nevertheless, law enforcement does not have to tell the person that consent is voluntary.
 
For instance, if a person is pulled over and the police officer asks if he take a look inside the trunk, and the person opens the trunk and responds, “sure,” the person just consented to the search. It need not matter that the person didn’t realize he didn’t have to consent.  

Can You Revoke Your Consent to a Search?

Yes, a person can revoke his consent to a search at any time after he already consented. The revocation must be done clearly and must be communicated to the police officer. Referring to the example above, if the police officer is poking around in the trunk of a person’s car, and the person says, “That’s enough, I’m revoking my consent and closing the trunk, please stop,” he has effectively revoked his consent. You should note that the revocation needs to be an affirmative withdrawal of his previous consent, rather than a vague disapproval or negative comments regarding the search. There is a difference between clearly stating, “I revoke my consent” and “I’d really prefer if you didn’t look in my trunk any longer.”
 
On the other hand, there are certain situations when consent cannot be revoked once it has been given. This applies to very limited circumstances, such as when a prisoner has consented to a search of their cell.

If law enforcement improperly or unreasonably search without valid consent and without a valid search warrant, any things found as a result of the search cannot be used as evidence of one’s guilt at a criminal trial.

What If I Feel Police Violated My Fourth Amendment Rights?

If you feel that your rights have been violated by a police search, you may want to seek legal advice. If, for instance, you did not consent to a search but law enforcement nevertheless searched your home without a search warrant, the search may have been unlawful. Any evidence obtained from the unlawful search cannot be used against you as evidence of your guilt.

Do I Need an Attorney?

Criminal law is intricate and complicated, so if you feel that your Fourth Amendment rights have been violated by a police search, you may need to hire a lawyer. A skilled criminal attorney will be able to ensure your rights are fully represented and can give you the best odds at a favorable outcome should your case go to trial.

Photo of page author Erin Chan Adams

, LegalMatch Legal Writer

Last Modified: 09-13-2017 01:12 PM PDT

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