Although people in the United States are entitled to freedom from government intrusion, there is a limit to that privacy. Police officers are allowed, where justified, to search your home, car or other property in order 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 ahead to learn more about police search and seizure authority and limitations.
What the Police MAY Do:
Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches. For a search to be "reasonable," law enforcement generally must have adequate reason to believe that evidence of a crime will be found there. This is referred to as probable cause. In many situations, the police must first make this showing to a judge, who will then issue a search warrant.
Once a search warrant is obtained, police may enter the identified location and search for the items listed in the warrant. Police may sometimes expand the search beyond the warrant's specifications, such as when they spot obvious evidence of a crime in "plain view."
Example: The police have a warrant to search your apartment for stolen jewelry. While there, they notice bricks 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 briefly making a "protective sweep" to check whether any dangerous persons are on the premises.
Example: The police arrest you in your living room on charges of armed robbery. They may open the door of your coat closet to make sure that no one else is hiding there, if it's reasonable to think someone might be in the closet, but they may not search your medicine cabinet because an accomplice couldn't hide there.
Police may perform a search without a warrant if they have your consent to do so, but their search cannot extend beyond the consent that you provided. In addition, your consent must be voluntary so officers can't coerce or trick you into giving consent for a search.
Example: Police officers ring your doorbell and ask for permission to search your garage for evidence of a methamphetamine lab. If you say yes, they can lawfully search in the garage, but not in other areas of the house, unless there is another basis (beyond your consent) allowing the search to expand beyond the garage.
Police can perform a search without a warrant if you don't have a "reasonable expectation of privacy" in the area to be searched.
Example: Police dig through your curb-side garbage can to find a murder weapon. Because you don't have a reasonable expectation of privacy in trash that you leave on the curb for pickup, no warrant is necessary.
Police can perform a search without a warrant in urgent or emergency situations where there is no time to obtain one, also referred to as "exigent circumstances."
Example: The police receive a 911 call about gun shots fired in the apartment upstairs. Police can immediately enter the dwelling without waiting for a judge to issue a warrant.
Another example: An officer rings your doorbell and then, through the window, sees you frantically dumping what appears to be heroin down the drain. There's no need to wait for a judge to issue a warrant before entering the residence.
Police can perform a search without a warrant if they're in "hot pursuit" of a suspect who ducks into a private home or area to escape. This is another form of "exigent circumstances."
Example: The police are chasing you from the scene of a burglary, and you suddenly dash into someone's apartment to escape from them. They may follow you into the apartment and search the area.
When making an arrest, police don't need a warrant to search the person and the immediate surroundings.
What the Police MAY NOT Do:
All police searches require warrants unless one of the exceptions to the warrant requirement applies (e.g., consent, exigent circumstances, plain view).
If evidence was obtained through an illegal search and seizure, prosecutors may be barred from using it against you in a trial. This is called the "exclusionary rule." The rule has some exceptions.
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.
The police may not search your vehicle unless there's a reasonable suspicion that it contains evidence of a crime.
The police may not "stop and frisk" you unless they have a reasonable suspicion that you're involved in criminal activity and that you may be armed and dangerous. Frisk means pat down your outer clothing.
Learn More About Search and Seizure from a Lawyer
When a police search is illegal, the judge may toss out the evidence. If you're facing charges, don't waste a moment before speaking with an experienced attorney who will protect your constitutional right against unlawful search and seizure. Contact a qualified criminal defense lawyer near you today.