In a criminal law setting, a search is an inspection of a person’s property, personal belongings, body, or other area in which a person could reasonably expect to keep private from and is conducted by law enforcement.

The Fourth Amendment to the U.S. Constitution is the main body of law governing searches and search procedures. It was specifically enacted to protect the public from acts of unreasonable searches and/or seizures carried out by law enforcement officers.

As a general rule, a police officer must have probable cause before they conduct a search or to obtain a search warrant. However, there are some notable exceptions to this standard.

When is a Search Warrant Required?

As discussed above, the law generally requires that law enforcement obtain a search warrant prior to a search for evidence in areas or property wherein a person has a “reasonable expectation of privacy.” The search warrant must be secured first in order for the search to be deemed legally valid. Whether or not an individual has a reasonable expectation of privacy depends largely on the facts and circumstances of a specific case.

Nevertheless, case law establishes that the home (i.e., under the theory that the home is one’s castle), certain parts of a motor vehicle (e.g., a locked trunk), and hotel rooms, among other places, are protected from warrantless searches and seizures performed by law enforcement.

Does a Search Need to be Announced?

It is not necessary to announce a search when the police have a valid search warrant. If the police do in fact have a valid search warrant, then they are allowed to enter and search the premises, even without knocking, ringing the doorbell, or announcing their presence due to various safety concerns of the police. However, this rule only applies to federal searches that are strictly governed by federal laws.

In contrast, each state may have its own statutes that could provide a slightly different take on the federal rule, but are still based on its original premise. Generally speaking, the state equivalent of this standard is commonly referred to as the “knock and announce” rule.

On the other hand, if law enforcement did not get a search warrant before performing a search of a person or their property, then any evidence seized during the warrantless search may be barred from being used as evidence against a person in court.

As previously mentioned, while there are some exceptions to when a search can be carried out without a warrant, warrantless searches are generally considered to be illegal.

Can Police Search Without a Warrant?

Once again, although search warrants are ordinarily required, there are certain times when a situation may justify the police to search without obtaining a warrant first. The following is a list of some examples of when the circumstances may permit such a warrantless search:

    • Performing a search of an individual after they have been lawfully arrested;
    • Obtaining the consent of either the person being searched, or the owner of the property being searched;
    • Searching inside a person’s motor vehicle after a valid stop;
    • Stopping and frisking a suspect for an investigatory detention (sometimes called a “Terry stop”);
    • Searching any areas that are in plain view of an officer (note this could include portions of the property outside the premises, even if there is a fence or the officer needs binoculars to do so);
    • Conducting a search in connection with the “hot pursuit” of a suspect; and
    • Seizing evidence that is about to be destroyed or lost.

In addition to other exceptions, the above list is subject to a whole host of various limitations and regulations in regard to what an officer can and cannot search.

What If a Search Warrant is Invalid?

Generally, a search warrant must be based on probable cause and needs to be issued by a neutral and detached magistrate or judge, in order for it to be considered legally valid. The term “probable cause” means that there are facts or evidence that would lead a reasonable person to believe that someone has committed a crime.

For instance, if someone gets pulled over by the police while driving and there is a bag of drugs sitting on the passenger seat in plain view for anyone to see, the responding officer will most likely have probable cause to believe that the person has committed a crime. It should be noted that this particular example can change, depending on the type of drugs (e.g., marijuana) and whether or not the state has legalized it.

In addition to the requirements of probable cause and issuance by a neutral and detached magistrate, a search warrant must state the areas that need to be searched and identify the items that may need to be seized. Also, it must be filed in good faith by the officer who is submitting it. In other words, a search warrant does not provide law enforcement with free reign to conduct a search wherever they want.

In the event that a search warrant is either not issued by a neutral and detached magistrate, was not filed in good faith, or does not specifically state and identify where to search or the items that can be seized, then the warrant may be invalid. In such a scenario, the subsequent search may be illegal and any information obtained therein can be suppressed.

The same precedent holds true for any evidence or information obtained from a search and seizure conducted without a warrant, and which also does not meet any of the warrantless exceptions. The legal phrase for evidence acquired during an illegal search is referred to as “fruit of the poisonous tree.”

Do I Need to Hire an Attorney for a Warrantless Search Issue?

If you or your property have been the subject of a warrantless search conducted by law enforcement, then it may be in your best interest to hire a local criminal defense attorney for further legal advice.

An experienced criminal defense attorney will be able to determine whether the proper legal procedures were followed when you were searched. If the police did not obey search protocols, then your attorney can help make sure that the evidence obtained during their illegal search is suppressed and will not be used against you in court.