Can the Police Search Your House Without a Warrant?

Can the Police Search Your House Without a Warrant?

by Michelle Kaminsky, Esq., October 2009

Just from watching legal dramas on television, many people know that the police need a warrant to search your house. This is accurate, for the most part, as the Fourth Amendment protects private citizens from unreasonable searches and seizures. But did you also know that under the exclusionary rule generally anything seized during an illegal search cannot be used as evidence in court?

As a result of the exclusionary rule, there are important exceptions to the warrant requirement that have developed under the law that everyone should know about.

Let's start with the basics first. What is a search warrant? If a judge is convinced that there is "probable cause" of either criminal activity or contraband at a place to be searched, he or she will issue and sign a search warrant—a court order that allows the police to search a specific location for specified objects at a specific time.

That's a lot of specifics, to be sure, but they are important legal distinctions. This wording means that if officers have a warrant to search your house, they don't get automatic authority to also search your car parked outside on the curb; or, if the object specified is a stolen painting, they can't rummage through your underwear drawer, unless, of course, the painting could fit into that space.

Note that you may ask to read the search warrant or have the officer read it to you.

There are four main circumstances in which a warrant is not required for police to search your house:

1. Consent. If the person who is in control of the property consents to the search without being coerced or tricked into doing so, a search without a warrant is valid. Note that police do not have to tell you that you have the right to refuse a search, but you do. Also, note that if you have a roommate, he or she can consent to a search of the common areas of your dwelling (kitchen, living room), but not to your private areas (bedroom, for instance). On the other hand, the Supreme Court recently ruled that one spouse cannot consent to the search of a house on behalf of the other.

2. Plain View. If a police officer already has the right to be on your property and sees contraband or evidence of a crime that is clearly visible, that object may be lawfully seized and used as evidence. For example, if the police are in your house on a domestic violence call and see marijuana plants on the windowsill, the plants can be seized as evidence.

3. Search Incident to Arrest. If you are being arrested in your house, police officers may search for weapons or other accomplices to protect their safety (known as a "protective sweep"), or they may otherwise search to prevent the destruction of evidence.

4. Exigent Circumstances. This exception refers to emergency situations where the process of getting a valid search warrant could compromise public safety or could lead to a loss of evidence. This encompasses instances of "hot pursuit" in which a suspect is about to escape. A recent California Supreme Court decision ruled that police may enter a DUI suspect's home without a warrant on the basis of the theory that important evidence, namely the suspect's blood alcohol level, may be lost otherwise.

So what should you do if the police show up at your house "just wanting to look around?" It's not in your best interest to deny them access because there may be extenuating circumstances that you don't know about; you certainly don't want to risk physical injury or being charged with interfering with a police investigation when you didn't have anything to hide in the first place.

However, do make it clear that you are not consenting to the search. Ask the officers for identification and an explanation as to why they are there and what they're looking for. Also, write down details of the search as soon as possible, in case you need them later.