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What Type of Search May Be Conducted Without a Warrant?

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What Type of Search May Be Conducted Without a Warrant?

In order to seize evidence of a crime, police generally need to secure a valid search warrant before they can search property. This warrant must be based on probable cause, well defined in terms of the property to be searched, and authorized by a neutral and detached judge or magistrate. Once the police have secured the warrant, they can proceed to search the premises for the evidence they are looking for.

However, there a number of very specific circumstances in which police may search for evidence without having to secure a warrant first. These include:

  • Searches made at the same time of a lawful arrest (the police still need probable cause to make the initial arrest however).
  • Search of automobiles (probable cause still required; for instance, after a valid traffic stop).
  • According to the consent of the individual to be searched.
  • "Stop and Frisk" search- this is where the police shortly detain a person, usually to question them about a crime. Police still reasonable suspicion to make the investigatory detention, and are limited to a "pat down" type search of the clothing.
  • Plain view: Police can always search any areas that are in plain view, granted that they are legally on the premises in question.
  • Hot pursuit: Police can perform a quick search of an area if they are in "hot pursuit" of a fleeing suspect.
  • "Evanescent Evidence": Police can perform a warrantless search if they have reason to believe that crucial evidence is about to be destroyed (such as drugs that are about to be flushed down a toilet).

Each of these situations also involve very specific details regarding the limits of the search that is allowed (for instance, whether containers can be opened, how far the police can search, whether they must have permission to open a door, etc.). These details can get quite complex and generally require a lawyer for interpretation.

What Happens if a Warrantless Search is Illegal?

Criminal procedure rules state that evidence that is seized as a result of an illegal search without a warrant must be "excluded" during any trial or proceeding that follows. Such evidence is considered to be "tainted" by the illegal search and can’t be entered into the record as evidence. Depending on the jurisdiction there may be exceptions or limitations to this, but in general, evidence obtained by means of an illegal search must be excluded.

Do I Need a Lawyer for Help with Criminal Laws?

Searches and warrants can sometimes be difficult to deal with. It’s in your best interests to hire a criminal defense lawyer if you are facing criminal charges, or if you need legal assistance with an issue. Your attorney can help you and advise you of your legal rights. Also, a qualified lawyer will be able to explain whether your rights have been violated as a result of an illegal search.

Photo of page author Jose Rivera

, LegalMatch Legal Writer

Last Modified: 04-25-2018 01:47 AM PDT

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