Under the Fourth Amendment of the United States Constitution, any search of a home by the police must be “reasonable.” For the search of a home to be “reasonable,” the search must be conducted with a search warrant. A search without a warrant is unreasonable, unless the search is conducted under a lawful exception to the warrant requirement.

When are Searches Permitted?

A person’s home has special protection under the Fourth Amendment, which protects the right of the people “To be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

To search a person’s home for evidence of a crime, the police must obtain a search warrant from a judge. If the police do not have a search warrant, a search is only permitted if an exception to the warrant requirement applies.

What is a Search Warrant?

A search warrant application is a document prepared by the police. In the warrant application, law enforcement requests that the Court grant it permission to search a home. The Court may only grant the application if the application contains enough detail to provide “probable cause” for the search.

“Probable cause” means reasonable cause to believe that evidence of criminal activity or a crime can be found at the address stated in the application. If the court finds probable cause, then the Court will sign the application.

Generally, the scope of the search is limited to where the evidence of criminal activity or a crime may be found. For example, if the warrant indicates that the suspected crime is theft of a baby grand piano, then the police may search all rooms large enough to contain a piano. However, the police may not exceed the scope of the warrant by searching items or areas too small to hold a piano. To do so would be to “execute” the warrant unreasonably, in violation of the Fourth Amendment.

If the police validly execute the warrant, and find evidence relating to a crime or criminal activity, then the evidence may be seized and introduced. To be “introduced” means that the evidence can be used at trial against the defendant believed to have committed the crime.

What are the Exceptions to the Warrant Requirement?

Under certain circumstances, the police may perform a “warrantless search.” A warrantless search, or search without a warrant, is permitted under circumstances where obtaining a warrant is impractical or unnecessary. Police may conduct a warrantless search under the following circumstances:

  • The evidence is in “plain view.” If the police have a lawful right to search the premises, and observe evidence of a crime or criminal activity in plain sight, like out on the table, the evidence can be seized without a warrant.
  • The police are conducting a “hot pursuit” chase. In a hot pursuit chase, the police are trying to arrest a criminal suspect who has “taken flight” by fleeing or attempting to hide from the police. If the police believe the suspect has entered a home, then the police may search the home and arrest the suspect.

    • If, during the search, the police find evidence of an “instrumentality” of the crime, the police may seize that evidence. An “instrumentality” of a crime is something used to commit a crime, such as a gun.
    • If, during the search, the police discover what may be “fruits” of the crime (for example, a pile of jewelry, in an armed robbery search), these “fruits” may also be seized.
  • After a suspect has been arrested. Upon an arrest, the police may search the person of the arrested person (arrestee) to remove what might be weapons. The police may also seize evidence (e.g., money, drugs, pills) that is capable of being concealed or destroyed, and is found on the arrestee’s person. The police may search the area in which the suspect has access to a weapon.
  • The homeowner consents to the search. If a homeowner consents to a search, neither a warrant nor probable cause are needed. However, the scope of the search is limited to the extent of the permission given. This means that if the person consents to a search of the living room, the police may only search the living room.

What If a Co-Occupant Consents to a Search of the Home?

The United States Supreme Court has ruled that, if one occupant is present in the home and objects to the search, consent of another occupant is insufficient to justify the search. In such situations, a warrant is required. However, if the objecting occupant is not present when the other occupant grants permission, then the warrantless search is valid.

What if the Police Illegally Seize Evidence?

The police may seize evidence illegally in one of two ways. These include exceeding the scope of the permitted search under the warrant, or by not having a warrant where one is needed. If evidence is illegally seized the evidence cannot be used against the defendant at a criminal trial.

Do I Need a Lawyer for Help With An Illegal Search Issue?

If you believe you have been the victim of an illegal search, then you should contact a criminal defense attorney. An experienced criminal defense attorney can advise you of your rights and represent you in hearings and court proceedings.