When Can the Police Search Without a Warrant?
The 4th Amendment of the United States Constitution protects people from unreasonable searches and seizures. Courts have interpreted the 4th Amendment to require the government to obtain a warrant in some situations prior to conducting a search. However, warrants are not always required.
A search warrant is legal paperwork signed by a judge that gives the government legal permission to search an area described in the search warrant. Search warrants can only be issued if the court finds probable cause that evidence relevant to an investigation will be found in the area in which the government seeks to search.
A good rule of thumb is that warrants are always required for the government to search your home unless a specific exception applies. Searches of vehicles and people’s clothing oftentimes do not require a search warrant. This article discusses common situations that may or may not require a search warrant.
If you give police consent to search an area, then the police will not need to obtain a search warrant.
For instance, if the police knock on the door to your home and ask you to search inside, if you give them permission, they will not need to obtain a search warrant. Similarly, if the police pull you over while you are driving your vehicle and then ask to search your vehicle, they will not need a search warrant if you give consent for them to search.
If the police have legal justification to search an area without consent, then they will typically search that area even if you don’t consent to the search. In those situations, they still may ask for consent even though they plan to search regardless of your answer. The police ask for consent because, in the event that a court later rules that the police did not have proper legal justification to search, the government can then say that you consented, so it doesn’t matter whether there was legal justification.
Sometimes, the police will obtain consent to search after they have already violated your rights against unlawful searches and seizures. When that happens, your consent may be nullified by the court and the evidence recovered pursuant to your consent will be suppressed from evidence.
For instance, let’s say the police pull over a person in a vehicle, demand that the person gets out of his vehicle, and then search the person without probable cause. The police then recover bullets from the person’s pocket. The police then say something like, “a gun goes with bullets, right? Mind if look inside of your vehicle.” A person might be intimidated in that situation to consent to a search. Let’s say the police do search the vehicle and find a gun. Since the consent in this example was the result of the police unlawfully searching the person’s pockets and finding bullets, the gun recovered—as well as the bullets—could likely be suppressed from evidence and the case could be dismissed.
The bottom line is that you should never consent to a search because it may give the government information that they are not legally entitled to have.
The police may also search areas—including homes—without a warrant when an exigent circumstance exists. In other words, the police can search an area when there is an emergency that justifies immediate police intervention.
For instance, if someone calls the police and says that a person is committing an assault with a weapon inside of a home, the police can justifiably enter the home to stop the alleged perpetrator from assaulting someone.
If, while entering the home to respond to the emergency, the police see evidence of a crime in plain view, then they can seize that evidence and use it against the defendant in court. On the other hand, the police can’t snoop around the home if it isn’t related to the emergency. For instance, if someone calls the police and says there is a domestic violence altercation occurring inside of a home, if the police arrive and break up the fight, they can’t start going through drawers in the home, of course, unless the owner of the home consents to a search.
The police do not need a search warrant to search the inside of a car. If the police have probable cause to believe that evidence of criminality is inside a vehicle, they are legally entitled to search all the areas where they have probable cause to believe that they may find evidence.
For instance, if the police pull someone over because they suspect the person is driving while intoxicated, they are not entitled to search the trunk because they don’t have probable cause to believe that evidence of criminality will be found there. On the other hand, if the police pull over a vehicle because they just observed a drug transaction and saw the driver put the contraband in the trunk, then they would have probable cause to search the trunk.
Incident to Lawful Arrest
The police are allowed to search a person (pockets, shoes, etc.) when a person is arrested, even if the police do not have a search warrant. This search, known as a search incident to a lawful arrest, is common practice, and the police will voucher all items recovered to either give to the prosecution or back to the defendant once he is released. However, if the arrest is unlawful, then items recovered after the unlawful arrest may be suppressed from evidence.
For example, if a person is arrested for grand larceny, the police will search that person and voucher all items found on that person. If stolen property is found, that evidence will be vouchered and given to the district attorney’s office. On the other hand, a personal item, such as the defendant’s cell phone, will be vouchered and given back to the defendant once he is released.
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