When Can the Police Search My Home?

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 performed with a search warrant. A search without a warrant is unreasonable unless performed under a legal exception to the warrant requirement.

When are Searches Allowed?

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

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

What is a Search Warrant?

A search warrant application is a paper prepared by the police. In the warrant application, law enforcement asks that the court permit it to search a home. The court may only allow the application if the application has enough detail to provide “probable cause” for the search.

“Probable cause” means reasonable cause to believe that proof of criminal activity or a crime can be found at the address expressed in the application. If the court sees probable cause, the court will sign the application.

Typically, the search scope is limited to where the evidence of criminal activity or a crime may be located. For instance, suppose the warrant suggests that the presumed crime is the theft of a baby grand piano. In that case, the police may search all rooms big enough to hold a piano. However, the police may not surpass the warrant’s scope by searching items or areas too small to have a piano. To do so would be to “execute” the warrant unreasonably, violating the Fourth Amendment.

Suppose the police validly execute the warrant and find evidence relating to a crime or criminal activity. In that case, the evidence may be taken and introduced. To be “introduced” means that the evidence can be used at trial against the defendant thought to have committed the crime.

What are the Exceptions to the Warrant Requirement?

On certain occasions, the police may conduct a “warrantless search.” A warrantless search, or search without a warrant, is permitted when getting a warrant is impractical or unneeded. Police may perform a warrantless search under the following circumstances:

• The evidence is in “plain view”: If the police have a lawful privilege to search the premises and observe evidence of a crime or criminal activity in plain sight, the evidence can be seized without a warrant.
• The police are conducting a “hot pursuit” chase: In a hot pursuit chase, the police try to arrest a criminal who has “taken flight” or tried to hide from the police. If the police think the suspect has entered a house, then the police may search the house and arrest the suspect.
  • If the police find evidence of an “instrumentality” of the crime during the search, the police may take that evidence.
  • An “instrumentality” of a crime is something used to commit a crime, such as a firearm.
• If, during the search, the police locate 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 (the arrestee) to remove what might be weapons. The police may also take evidence (e.g., money, drugs, pills) that can be hidden or destroyed and is found on the arrestee’s person. The police may search the area where 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 is needed. However, the search scope is restricted to the extent of the permission given. This means that if the individual consents to searching the living room, the police may only search the living room.

What If a Co-Occupant Consents to a Search of the Home? Who Can Let the Police Search Your Residence?

Police officers may search the residence of an owner who consents. But what if someone other than the owner offers to let the authorities have a look around?

Courts typically start with the belief that any search of a home without a warrant is unreasonable. Evidence from unreasonable searches is generally inadmissible in court. But, as with nearly all legal regulations, there are exceptions to the home-warrant requirement. One exception involves consent. The police usually don’t need a warrant to examine a home when someone who seems to have authority to authorize them to search lets them search.

When the homeowner agrees to the police searching the premises, the search will be legal. The question of whether a home search is fair gets a little more problematic when someone other than an owner agrees to the investigation.

Tenants

Even inhabitants who have less than full ownership over the premises can, through consent, give police the legal rationale they need to search parts of a home. For instance, a roommate can consent to permit the police to search her room, the living room, and the kitchen. But if she doesn’t have entry to or dominion over her roommate’s separate bedroom, she can’t provide consent.

Inhabitants and Their Guests’ Belongings

In general, the immediate resident of a home can give proper consent to a search that might incriminate a guest who is temporarily staying there. But if the tenant doesn’t have access to or use of the place or item to be searched, the consent is likely nullified.

Hosts typically don’t have the power to consent to a search of their guests’ “personal effects” when there’s no reason to think they have access to or control over them per authorization for the police to search it.

The United States Supreme Court has ruled that if one tenant is present in the home and objects to the search, the consent of another tenant is insufficient to justify the search. In such cases, a warrant is needed. However, the warrantless search is reasonable if the objecting tenant is not present when the other occupant gives permission.

What if the Police Illegally Take 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 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, you should contact a criminal defense attorney. An experienced criminal defense lawyer can advise you of your rights and represent you in hearings and court proceedings. LegalMatch has a database of the best criminal defense lawyers in your area. Use LegalMatch to find the right lawyer for your needs. There is no fee to schedule a consultation with a criminal defense attorney. Additionally, LegalMatch’s services are entirely confidential. Secure your peace of mind by using LegalMatch today.