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Searches without a Warrant

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What Is a Search?

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 U.S. 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.

When is a Search Warrant Required?

The law requires law enforcement to obtain a search warrant to search for evidence in areas or in property where the person has what’s described as a “reasonable expectation of privacy.” Whether a person has a reasonable expectation of privacy depends largely on the facts and circumstances of the case. Nevertheless, case law establishes that the home (under the theory that the home is one’s castle), certain parts of a motor vehicle (a locked trunk), or even hotel rooms, among other places, are protected from warrantless searches and seizures.

Does a Search Need to Be Announced?

If police have a valid search warrant, they are allowed to enter a premises even without knocking, ringing a doorbell, or announcing their presence due to safety concerns of the police. This rule only applies to federal searches under federal laws. Each state may have a slightly different take on this rule, which is often referred to as the "knock and announce" rule.

Warrantless Searches

Generally, law enforcement needs to obtain a search warrant prior to searching a person or his property. Any evidence seized during a warrantless search may be excluded from being used as evidence of the person’s guilt in court. A warrantless search can be considered illegal.

Can Police Search Without a Warrant?

Although search warrants are generally required, there are certain circumstances which justify searches without a warrant. Below is a non-exhaustive list of situations which permit a warrantless search.

  • Searching a person after they have been lawfully arrested
  • Searching an automobile after a valid stop
  • Obtaining the consent of the person being searched
  • Stopping and frisking a suspect for an investigatory detention
  • Searching areas that are in plain view of the officer
  • Searching in connection with "hot pursuit" of a suspect
  • Seizing evidence that is about to be destroyed or lost

These are subject to a whole host of limitations and regulations regarding what the officer can and cannot search.

What If a Search Warrant is Invalid?

A warrant is issued by a neutral magistrate or judge and must be based on probable cause in order to be valid. Probable requires facts or evidence that would lead a reasonable person to believe that someone has committed a crime. For instance, if someone is pulled over, and there is a bag of marijuana in the passenger’s seat in plain view in a state where marijuana is illegal (recreational and medicinal), the officer would have probable cause to believe that the person committed a crime.

In addition to being issued by a neutral magistrate, the warrant must be filed in good faith by law enforcement and state which areas can be searched and which items can be seized. It does not give officers free reign to search wherever he wants.

If the search warrant is not issued by a neutral detached magistrate, was not filed in good faith or does not state specifically which areas can be searched and what items can be seized, the warrant may be invalid. In that case, the subsequent search may be illegal and any information obtained therein can be suppressed. Of course, if police conduct a search and subsequent seizure and are not legally permitted to conduct a warrantless search, the information can also be suppressed. In legal terms, the evidence obtained during an illegal search is considered “fruit of the poisonous tree.”

Do I Need an Attorney for a Warrantless Search Issue?

If law enforcement have searched you or your property without a valid search warrant, hiring a criminal law attorney is in your best interest. An attorney can help determine if the right procedures were followed when you were searched. If police did not follow protocol, the attorney can help ensure that the evidence obtained during a warrantless search is suppressed and is not used against you.

Photo of page author Erin Chan Adams

, LegalMatch Legal Writer

Last Modified: 10-01-2017 07:14 PM PDT

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