In a 1991 episode of Law and Order, the detectives arrested a homeless man who was later convicted of murder based on the police's discovery of the murder weapon in his “home” in Central Park. However, the conviction is later threatened on appeal because the police did not have a warrant to search his “home.” This is a familiar basis for many Law and Order storylines; obtaining a warrant before performing a search and seizure is a sticky situation in the popular legal drama. But, what about in real life? Can you be searched without a warrant?
Anyone who is familiar with the U.S. Constitution would emphatically say no to this question, as the Fourth Amendment protects private citizens from unreasonable searches and seizures. The amendment reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Under the Fourth Amendment, police officers must obtain written permission from a court of law to legally search a person and his or her property and seize evidence while they are investigating possible criminal activity. And, as in the Law and Order case above, the exclusionary rule mandates that evidence obtained through illegal searches is not admissible in a court of law. However, many individuals under the pressure of the police may not be aware of this rule or their other rights under the Fourth Amendment. In addition, there are cases in which police can legally search without a warrant if probable cause is established or if consent is given by an individual.
What is a Warrant?
A warrant is a legal order signed by a judge authorizing the police to search a specific location and seize specific materials from that location at a specified time. For example, a warrant may specify that police can search 123 Main Street for marijuana between the hours of 8:00 a.m. and 5:00 p.m. The police must convince the judge, using sworn statements, that they have probable cause or a reasonable belief that a crime has taken place, in order to receive a warrant to search a particular area for evidence of that crime.
The police will provide their own evidence for the warrant and the suspect is not present when the warrant is issued. Once a warrant is obtained, the police can only search the location specified in the warrant, whether it is a home, a car, or a specific outside location. For example, if a warrant specifies that the police are searching the backyard of a home, they cannot legally also search the home or vehicle of the individual. In addition, they must only search for what is specified in the warrant.
When is a Warrant Not Required?
There are times when police can perform a search without a warrant, and most searches actually do occur without warrants being issued. That is not to say the police can barge into your home and search it without a warrant; if there is a reasonable expectation of privacy and there is not probable cause, a search warrant is required. However, if probable cause does occur, such as the suspect runs away, a gunshot is heard from another room in a home, or even when an individual makes a sudden movement, a search becomes legal without a warrant. Even with a reasonable expectation of privacy, the police can legally conduct a search without a warrant in situations in which certain exemptions apply.
Exemption 1 – Consent: If an individual freely and voluntarily agrees to a search of his or her property, without being tricked or coerced into doing so, the police can search this property without a warrant. Police do not have to inform you that you do, indeed, have the right to refuse a search, and individuals have been arrested and even sent to jail because they did not know they had the right to refuse search and seizure.
If two or more people live at the same location, usually one tenant cannot consent to a search of areas owned by another tenant. A tenant can, however, consent to a search of the common areas of a home, such as the living room or kitchen. A landlord is prohibited from giving consent to the search of his or her tenant's private belongings, and the Supreme Court has also ruled that an individual cannot consent to the search of a house on behalf of a spouse. An employer, however, can consent to a search of a company, which includes an employee's work area, but not an employee's personal belongings.
Exemption 2 – The Plain View Doctrine: Police officers can legally search an area and seize evidence if it is clearly visible. If the police see an illegal act occurring outside of your home, they may perform a search and seize evidence from your home without a search warrant. For example, if a police officer stops a driver for speeding and sees marijuana in the window, a search can be conducted without a warrant. The police must still have probable cause, however, that the items are indeed illegal.
Exemption 3 – Search Incident to Arrest: Police officers do not need a warrant to perform a search in connection with an arrest. If you are arrested for a crime, the police have the legal right to protect themselves by searching for weapons, evidence that could be destroyed, or accomplices to the crime. For example, if you are arrested for drug possession, the police can search for additional drugs by searching you, your home, or your car, and any evidence found can be used against you in a court of law.
Police can also perform what is called a “protective sweep” following an arrest. This is done if the police believe a dangerous accomplice or accomplices may be hiding inside a specific location. The police will walk through the location and can legally visually inspect places in which an accomplice may be hiding. In addition, the police can legally seize any evidence located in plain view during the sweep.
Exemption 4 – Exigent Circumstances: If the police feel that the time it would take to get a warrant would jeopardize public safety or lead to the loss of evidence, they can perform a search without a warrant. For example, the police can forcibly enter a home if it is probable that evidence is being destroyed, if a suspect is trying to escape, or if someone is being injured. The police officer's responsibility to preserve evidence, arrest a suspect, or protect an individual outweighs the search warrant requirement.
Know Your Rights…
If the police show up at your doorstep claiming they would like to look around, you are legally allowed to refuse this request. However, many times it is in your best interest to allow access in order to avoid injury or being charged with interfering in a police investigation. That being said, you are not required to give consent to a search without a warrant, and you should always ask the police officers for identification and an explanation as to why they are at your location. If the police do have a warrant, you can ask them to read the search warrant to you.
If a search of your home or vehicle has already occurred and you are not sure if it was done legally, you should contact a criminal defense attorney and be apprised of your legal rights going forward.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.