Searches without a Warrant

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 What is a Search?

In a criminal law setting, a search examines a person’s property, personal belongings, body, or other areas that an individual could reasonably expect to keep private from law enforcement.

The Fourth Amendment to the U.S. Constitution is the primary body of law overseeing searches and search methods. It was expressly legislated to safeguard the public from acts of unreasonable searches and seizures carried out by law enforcement officers.

As a general rule, a police officer must have probable cause before searching or getting a search warrant. However, there are some noteworthy exceptions to this rule.

What is a Warrant?

A warrant is a legal order signed by a judge allowing the police to search a specific location and seize specific items from that location at a specified time. The officer must convince the judge, using sworn statements, that they have probable cause or a reasonable belief that a crime has taken place. If the judge is convinced, the police will obtain a warrant to search a particular area for evidence of that crime.

The police will supply their own evidence for the warrant. The suspect is not present when the warrant is issued. Once a warrant is received, the police can only search the location specified, whether a house, a vehicle, or a specific outside area. For example, suppose a warrant stipulates that the police are searching the backyard of a home. In that case, they cannot legally search the residence or car of the individual. In addition, they must only search for what is established in the warrant.

When is a Search Warrant Needed?

As discussed above, the law typically requires law enforcement to get a search warrant before searching for evidence in locations or property wherein a person has a “reasonable expectation of privacy.” The search warrant must be confirmed first for the search to be considered legally valid. Whether or not an individual has a reasonable expectation of privacy depends mainly on the facts and circumstances of a specific case.

However, case law confirms that the home, certain parts of a motor vehicle (e.g., a locked trunk), and hotel rooms are shielded from warrantless searches and seizures by law enforcement.

Does a Search Need to be Disclosed?

It is not necessary to announce a search when the police have a valid search warrant. Suppose the police do have a valid search warrant. In that circumstance, they are permitted to enter and search the premises, even without knocking, ringing the doorbell, or announcing their presence due to diverse safety concerns. Regardless, this rule only applies to federal searches strictly governed by federal laws.

In contrast, each state may have its own statutes that could deliver a slightly distinct take on the federal rule but are still based on its initial premise. Generally speaking, the state counterpart of this standard is typically referred to as the “knock and announce” rule.

On the other hand, if law enforcement did not get a search warrant before searching a person or their property, any evidence seized during the warrantless search may be blocked 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 typically thought to be unlawful.

Can Police Search Without a Warrant?

Although search warrants are ordinarily needed, there are certain times when a situation may justify the police to search without getting a warrant first. The following is a list of some instances of when the circumstances may allow such a warrantless search:

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

In addition to other exceptions, the above list is subject to many different limitations and regulations regarding what an officer can and cannot search.

What if a Search Warrant is Invalid?

Typically, a search warrant must be based on probable cause and must be administered by a neutral and detached magistrate or judge to be considered legally valid. The term “probable cause” means that facts or evidence would direct a reasonable person to believe that someone has committed a crime.

Suppose 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. In that case, the responding officer will likely have probable cause to think 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 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 presenting it. In other words, a search warrant does not provide law enforcement with free reign to search wherever they want.

If a search warrant is not issued by a neutral and detached magistrate, was not filed in good faith, or does not explicitly state and identify where to search or the items that can be seized, the warrant may be invalid. In such a case, the ensuing search may be illegal, and any info obtained during the search can be repressed.

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

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

If the police show up at your doorstep declaring they would like to look around, you are legally entitled to decline this request. You are not required to give consent to a search without a warrant. You should always ask the police officers for identification and an answer as to why they are at your place. If the police have a warrant, you can ask them to read the search warrant to you.

If a search of your home or vehicle has already happened and you are unsure if it was done legally, you should contact a criminal defense attorney.

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

An experienced criminal defense attorney will determine whether the proper legal procedures were followed.


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