The Fourth Amendment to the Constitution of the United States protects the right of people to be free from unreasonable searches and seizures. Law enforcement must have a warrant to search a person’s home. A person does not have to admit the police into their home if the police do not present a warrant. There are several limited exceptions to the requirement that police have a warrant to search a person’s home, which are detailed below.
Search warrants are issued by judges when the police present them with sufficient evidence to support a claim of probable cause to believe that the search will reveal evidence of criminal activity. Law enforcement is allowed to search a home without a warrant, only if one of the exceptions to the warrant requirement applies to the circumstances.
What Information Must a Search Warrant Contain?
A search warrant must be particular. A search warrant must contain the address of the home or a description of the premises or home to be searched. A warrant must state the identity of a person to whose conduct the search is related. A warrant must also specify what items the police have probable cause to believe they will find during the search. The warrant must also state a period of time for which it is valid; if the time has expired, the warrant is not valid. The warrant must be signed by an impartial, unbiased official, usually a judge or a magistrate, who is a kind of judge.
How May the Police Conduct a Search?
Searches with a warrant must be reasonably conducted. This means the police may not enter a different house than the one identified in the search warrant. They would only be able to enter a different home if one of the exceptions to the warrant requirement is justified by the factual circumstances.
To conduct a search of another home, law enforcement would need either a new search warrant for that home or the justification of one of the exceptions to the warrant requirement. Again, once the police arrive at the home, they must conduct their search in a reasonable manner. The police must generally knock on the door and announce their presence. They can only enter without announcing their presence if they have a special no-knock warrant for that purpose.
Generally speaking, the police must conduct the search during daylight hours. In order to conduct a search after 10 p.m., the police would need to have a warrant that specifically authorizes the timing.
Once the police enter a home, they may search any area of the house where the evidence of criminal activity for which they are searching might be found. Thus, if an area of the home or other premises could not possibly contain the evidence for which law enforcement is searching, it cannot be searched. For example, if the police suspect the theft of a computer, the police may not search the kitchen cupboards to locate the computer, but they could search bedroom closets.
When Can the Police Search a Home Without a Warrant?
The law permits searches of a home without a warrant, or “warrantless searches”, to be made under several circumstances. Entering a home without a warrant is always presumed by courts to be unreasonable. Law enforcement has the heavy burden of proving that the circumstances created an exception that justified a warrantless entry. The burden is especially heavy when the underlying offense committed by the suspect occurred in public and was relatively minor, e.g., a minor traffic violation.
- Plain View: Police may seize evidence of a crime if it is in “plain view” or within their line of sight. If the police observe evidence of criminal activity in plain view when they are in a place in which they have a right to be, they may seize the evidence without a warrant. This rule applies to the seizure of evidence and not entry into homes;
- Exigent Circumstances: When an emergency arises, such as a life-threatening event, then a law enforcement officer is permitted to forcibly enter a property without a search warrant. The officer’s purpose would be to rescue the endangered person inside. If during this process, criminal activity or evidence of it is observed in plain view, then the officer would be able to seize the evidence under the “Plain View” exception to the warrant requirement;
- Danger of Destruction: Under the “evanescent evidence” exception to the warrant requirement, police may seize the kind of evidence that can be quickly destroyed, concealed, or degraded. Evanescent evidence includes such items as drugs that can be flushed down a drain, blood stains or prints, and cash. Keep in mind, however, that the police cannot enter a home without a warrant just because easily destructible evidence might be inside. They would have to get a warrant to enter the home;
- Hot Pursuit: The police are in active pursuit of a criminal suspect and the suspect enters a home in order to escape pursuers or to hide there, the police may pursue the suspect into the home even though they do not have a warrant.
- Or, if there is probable cause to believe a suspect has hidden themselves in a home, the police may search that home for the suspect. Circumstances in the home might lead to the seizure of evidence. For example, the plain view exception or a search incident to an arrest might lead to the seizure of evidence;
- Search Incident to Arrest: After making a valid arrest, the police can search the person who has been arrested for weapons. These searches incident to arrest are allowed to ensure the safety of the arresting officers. If, in the course of searching the arrestee’s person, the police discover evidence that could be concealed or easily destroyed, such as cash or drugs, that evidence may be seized. The search incident to arrest is an exception that applies wherever a suspect is arrested. It does not apply only inside homes;
- Consent: The police, without a warrant, may knock on the front door of a home or other premises and ask the homeowner if the police can search the home. If the homeowner consents, the police may search the home. The police may only search only within the scope of the consent given. For example, if the homeowner allows a search of the ground floor and not the basement or the garage, the police must respect those limitations on the scope of the search.
Can the Co-Owner or Co-Occupant of a Home Give Consent to a Search?
Houses may be jointly owned or occupied. If one owner or occupant is present in the house and objects to the search, the other occupant may not “overrule” that occupant by consenting to a search. However, if the occupant who objects to the search is not in the house when the co-occupant gives consent, the police may conduct the search.
Can the Police Search My Room or Area of the House When I Am Not Home?
Homeowners who rent out a part of their home to a tenant may allow the police to search only the common areas or parts of the home used by both occupants of the house, the tenant and the homeowner. These areas would include such spaces as the kitchen, dining room, or any other area in the home that both the homeowner and the tenant use.
The landlord of an apartment may permit the police to search common areas, apartment gyms, laundry rooms, and recreational areas that are shared by tenants of an apartment building. However, a landlord cannot consent to the search of a tenant’s unit and a roommate cannot authorize the search of a person’s private room or space when the person is not present in their home.
What Happens If a Search Is Improper?
If law enforcement officers conduct a warrantless search that is not justified by one of the exceptions, or conduct a search with a warrant unreasonably, the search is illegal. The law requires that the evidence obtained from the search be suppressed. This means that the evidence obtained cannot be used to prove the guilt of the criminal defendant at a trial.
Do I Need a Lawyer’s Help for a Search Issue?
If you believe you are the victim of an illegal search or seizure of evidence, you should consult a criminal defense lawyer. An experienced criminal lawyer near you can review the facts of your case and advise you as to whether the search that produced any evidence was unconstitutional. The attorney can assist you in preparing a defense, including making any necessary motions to suppress evidence that is the product of illegal searches and seizures.
