In our legal system, people are innocent until proven guilty. This extends to arresting someone for a crime. Most of the time, police must have enough evidence and probable cause to support the need for an arrest warrant to make sure they're apprehending the right person. Generally, an arrest warrant is issued by a judge
However, there are times when a police officer can enter a home without a warrant to make the arrest.
When you voluntarily consent or let a police officer into your home, the officer or officers may enter without a warrant. The key is that consent must be voluntary. If you then claim your consent wasn't given voluntarily, the government in the form of a prosecutor or police, must prove that it was. In determining voluntariness, factors considered include:
- Fluency in English
- Educational level
- Knowledge of right to refuse
- Knowledge of criminal justice system in general
- Duration of questioning
- Threats or weapon displays by police
An officer may get consent from either the person who owns or controls the property, such as a homeowner or renter. Others who can give consent might include a third party who has mutual use of the property, such as someone who lives in a home.
In an emergency situation, an officer must have probable cause to believe that you're inside but doesn't need to have an arrest warrant. However, the government will have to prove in court that the emergency situation justified the lack of a warrant. The courts will review the emergency claim by looking at the facts known to the officer at the time of entry.
Emergency situations include:
- Imminent destruction of evidence
- Public or police safety
- Hot pursuit of a suspect
- Imminent flight of a suspect
- Emergency aid
Challenges to Consent
You may challenge the entry to your home by the police, who may say there was consent to enter. Under federal law, the two most common ways for a defense attorney to challenge the claim of consent are to argue:
- The person's consent wasn't voluntary
- The person who gave consent didn't have the power to do so
In addition, under state law, a state court may require more information to create a situation.
For example, under New York law, a police officer isn't allowed to ask a suspect for consent to search unless the officer has a "founded suspicion" of criminal activity. If the officer lacks founded suspicion, New York law treats a voluntary consent as involuntary. This New York law shows an example of how state laws can give more protection than what's required by the US Constitution.
Challenges to Lack of Warrant
You have the right to challenge a warrantless entry only if your constitutional rights were violated by the entry. You have this right only if you have a reasonable expectation of privacy in the place entered. The expectation of privacy in a place is removed if the place:
- Is exposed to public view
- Is easily accessible to the public or others
- Appears abandoned
Public places may include places in and around your home, such as a common hallway of an apartment or condo building, a front porch, a doorway or a driveway.
Questions for Your Attorney
- I consented to allow police to enter my home but I didn't think I had any other option. Is there anything I can do after the fact?
- My friend who was visiting me at my home gave police consent to enter. Can a guest do that even if I didn't want the police to enter my home?
- The police entered my hotel room and arrested me without having a warrant, is that legal? What were my privacy rights while in my hotel room?
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