Although people in the United States are entitled to some degree of freedom from government intrusion, there are limits to that privacy. Police officers are allowed, where justified, to search a person's home, car or other property to look for and seize evidence of a crime. What rules must the police follow when engaging in searches? What are they allowed to do, and what can't they do?
Read on to learn more about police search and seizure authority and limitations.
What the Police Can Do:
Under the Fourth Amendment to the U.S. Constitution, police are only allowed to engage in "reasonable" searches. A search is considered "reasonable" only if:
- Police have obtained a warrant to execute the search, or
- The search falls into one of the categories of exceptions where a warrantless search is permitted.
To obtain a warrant, police must show that they have adequate reason to believe that evidence of a crime will be found in a particular place or in the possession of a particular person. This is known as probable cause. Under the U.S. Constitution, police must first convince a judge that they have probable cause before that judge can issue a warrant. A judge can also deny a request for a warrant.
What Can the Police Do During a Search When They Have a Warrant?
Police are allowed to enter the location that the warrant lists, and they are permitted to search for the list of items that are mentioned within the warrant. Law enforcement officers may sometimes expand the search beyond these specifications, such as when they spot obvious evidence of a crime in "plain view."
Example: The police have a warrant to search an apartment for stolen jewelry. While in the apartment, they notice baggies of cocaine sitting on the kitchen table. They may seize the drugs.
When entering a home or business, police are allowed to ensure their own safety by quickly making a "protective sweep." In such a "sweep," they check for dangerous persons on the premises.
Example: The police arrest a suspect in his living room on charges of armed robbery. They may open the door of his coat closet to make sure that no one else is hiding there. It is reasonable to think someone might be in the closet. But they may not search the medicine cabinet because an accomplice simply could not hide in such a place.
Unlike arrest warrants, search warrants are usually limited in time. They often expire in just a few days. Some warrants will specify the time of day when the search can be performed. Those times are usually business hours. Others will specifically allow police to execute a search at other times so that officers may discover contraband in a way that is surprising to suspects. After the search, the officer who obtained the warrant must return to the judge and show the warrant has been executed. The officer may also submit a signed document to the judge if they cannot appear before that judge.
Police may perform a search without a warrant if they have the subject's consent to do so, but their search cannot extend beyond the consent that is provided. This consent must be voluntary. Officers cannot coerce or trick anyone into giving consent for a search.
Example: Police officers can simply knock and ask for permission to search a homeowner's garage for evidence of a methamphetamine lab. If the homeowner agrees, the police can lawfully search in the garage, but not in other areas of the house. However, the police can search in other areas of the house, if there is another basis (beyond consent) that allows for the search to expand beyond the garage.
For example, police can perform a search without a warrant anywhere that lacks a "reasonable expectation of privacy" in the area to be searched.
Example: Police can dig through someone's curb-side garbage can to find a murder weapon. Nobody has a reasonable expectation of privacy in trash that is left on a curb for pickup by waste management workers. So, no warrant is necessary.
Law enforcement officers can also perform a search without a warrant in urgent or emergency situations where there is no time to obtain one. Such situations are called "exigent circumstances."
Example 1: The police receive a 911 call about gun shots fired in the apartment upstairs. Police can immediately enter the identified dwelling without waiting for a judge to issue a warrant.Example 2: An officer rings the doorbell on the front porch, but then, through the window, sees someone frantically dumping what appears to be powdered drugs down a drain. There would be no need for the police to wait for a judge to issue a warrant before entering the residence.
Police can perform a search without a warrant if they are in "hot pursuit" of a person suspected of serious crimes who ducks into a private home or area in an attempt to escape. This is also a form of "exigent circumstances."
Example: The police are chasing a suspect from the scene of a burglary, and she suddenly dashes into someone's home to escape from them. They may immediately follow her into the home and search the area.
But in 2021, the U.S. Supreme Court placed limits on police authority to execute warrantless searches in cases of "hot pursuit." In Lange v. California, the Court ruled that the "hot pursuit" exception did not apply to people only suspected of traffic infractions or misdemeanor offenses.
Finally, officers do not need a warrant to search a person or their immediate surroundings, during an arrest.
What The Police Cannot Do
All police searches require warrants unless one of the exceptions to the warrant requirement is in play. Such exceptions include the examples provided above of consent, exigent circumstances, and plain view.
It is important to note that if evidence was obtained as a result of an illegal search or seizure, prosecutors may be barred from using it against the suspect in a trial. This is called the "exclusionary rule." While it is rare for this to happen, exceptions to this rule are occasionally made. Also, the police may not use evidence resulting from illegal searches to find other evidence. This is known as the "fruit of the poisonous tree" doctrine.
Typically, police may not search a vehicle unless they have a reasonable suspicion that it contains evidence of a crime. Also, law enforcement officers may not "stop and frisk" suspects unless they have a reasonable suspicion that a person was involved in criminal activity and may be armed and dangerous.
Learn More About Police Search and Seizure Authority
When a police search is illegal, the judge may toss out the evidence. If you are facing criminal charges, do not hesitate to speak with an experienced attorney who can protect your constitutional right to be free from unlawful search and seizure. Contact a qualified criminal defense lawyer near you today.