When law enforcement is engaging in a search, there are rules and exceptions derived from the Fourth Amendment and court opinions to minimize the risk of an illegal search and seizure.
A search warrant is a legal order issued by a judge or magistrate that authorizes law enforcement to conduct a search of a location or person and to seize any evidence of a criminal offense.
To obtain a search warrant, police must convince a judge that they have probable cause that a crime has occurred and that evidence will more than likely be found on the property or person in question. Usually, police provide a judge with written statements under oath, called "affidavits," which report either their own observations, or those of private citizens or police informants. If the judge believes that the affidavit establishes probable cause, they will issue a warrant.
Once a warrant is obtained, the police can only search the location specified in the warrant, whether it is a vehicle, a home, or a specific room within the home. In addition, they must only search for the property specified in the warrant.
If the police request to search your car, home or any property, don’t allow them to do so unless they have a proper search warrant. If you know you have nothing to hide, you may think that there’s no harm in letting them search. However, you never know what someone else may have left in your property that could be incriminating. If the police find something, even if it isn’t yours, you could be charged with possession.
The Fourth Amendment prohibits unreasonable searches and seizures by law enforcement. If an officer enters your home and obtains evidence without a warrant, the search will be presumed unreasonable and the evidence will be inadmissible in a court of law. We all have the right to feel secure in our “persons, houses, papers, and effects,” and unreasonable searches without a warrant violate this constitutional right.
However, if you do consent to the search of your property, you can no longer assert your Fourth Amendment right and the police are allowed to conduct their search.
Over the years, courts have defined a number of situations in which a warrant isn't necessary, either because the search is reasonable or the Fourth Amendment doesn't apply.
If you voluntarily agree to a search of your property, without being tricked or coerced into doing so, the police can search your property without a warrant. Officers don’t have to inform you that you have the right to refuse a search.
If the police limit their search to whatever you agreed to, the search will usually be valid. But courts don’t always require that the police ask for permission before searching each room; they often find that the initial consent is broad enough to justify whatever search the officers conduct, so long as the officer’s interpretation of the consent is reasonable.
Police don’t need a search warrant to seize contraband or evidence that is in “plain view.” However, officers must have a right to be in the area where the item is spotted, and they must have probable cause to believe the item is evidence or contraband in order to seize it.
Officers can briefly stop people they reasonably suspect of criminal activity. If they have further reason to suspect that the person is armed, they may frisk the person for weapons. If the stop or frisk leads to probable cause for arrest, the officer can conduct a search incident to arrest.
Officers have the right to search people they have lawfully arrested and the area within that person’s immediate control at the time of the arrest to protect themselves and preserve evidence.
Police can also perform what is called a “protective sweep” following an arrest. This is done if the police believe a dangerous accomplice may be hiding in the area. The police will walk through the location and can visually inspect places in which an accomplice may be hiding. If a sweep is lawful, the police can also seize contraband or evidence that is in plain view.
Police are authorized to conduct a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. A judge will decide whether a search based on exigent circumstances was reasonable. In these situations, an officer's duty to protect people and preserve evidence outweighs the warrant.
The general rule is that police can search a vehicle without a warrant if they have probable cause that contraband or other evidence is located inside the vehicle.
Police may also search the passenger compartment of a vehicle incident to the arrest of the driver or passenger if the arrestee is within reaching distance at the time of the search. The passenger compartment includes all areas but the trunk.
If the police have towed and impounded your car, officers can lawfully search it to make a record of what’s inside. Inventory searches are conducted to guard against allegations of theft, not to gather evidence. However, if police find contraband during a search, it can be used against you if towing the car was necessary and the search was consistent with department policy. It doesn’t matter what your car was impounded for, it could be as simple as a parking violation or as serious as auto theft.
If the police do conduct an unreasonable search and there was no exception to justify the search, you can challenge the introduction of evidence in a criminal case based on the argument that the evidence was found during an unreasonable search. This is called the Exclusionary Rule. If the court agrees the search was unreasonable, the evidence seized cannot be used against you at trial.
If you believe that the police violated your constitutional rights or you are unsure whether you fit one of the situations above, contact an attorney as soon as possible.
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