Updated November 6, 2015
Your home really is, in many ways, your castle. You might have expanded self-defense rights in it. And unless responding to some kind of emergency, it’s unlikely that an officer would be allowed to enter it without your permission or a warrant.
But despite the law’s protections, officers may enter homes, gather evidence, and even detain occupants under the right circumstances.
Many have called consent an officer’s best friend. The adage comes from the fact that officers can achieve so much with so little as an “okay” from the right person. Indeed, valid consent allows them to search when they don’t have a warrant or any other basis to examine a home.
If officers come by consent (relatively) honestly, the premises to be searched belong to the person granting consent, and the officers limit their search to the areas the consent giver agreed to, then any evidence they find will likely be admissible in court.
Usually, if officers simply fail to tell someone that a search could lead to criminal prosecution, consent from a resident will be valid. But consent can be invalid when officers mislead a suspect about who or what they’re investigating.
Under normal circumstances, officers may enter your home without your permission only if they have a warrant. With a search warrant, they have a court’s permission to come in, have a look around, and scoop up incriminating evidence. (See our article on arrest warrants to learn what those documents allow them to do.)
Getting a Search Warrant
A search warrant is a document signed by a neutral judge or magistrate authorizing law enforcement to conduct a search. An officer seeking a warrant has to detail facts that establish probable cause to believe that a crime has been committed and that the place to be searched holds evidence of it.
Warrant applications can sometimes be completed by phone, but they typically take written form—as affidavits. The officer applying for the warrant must sign (or swear) to the statement in the affidavit.
A judge or magistrate who finds probable cause will issue a warrant for the search of the premises in question.
Search Warrant Specifics
The Fourth Amendment to the U.S. Constitution requires that a warrant include a detailed description of the place officers will search and the evidence they’ll seize. Essentially, the warrant has to be specific enough that an officer with no connection to the case would know where to search and what to collect.
Warrants typically don’t have to describe contraband in as much detail as evidence that would appear to be harmless but bears connection with the crime in question. Contraband is, after all, property that is inherently illegal to possess, like illicit drugs or prohibited guns. But other kinds of evidence aren’t so obviously incriminating—for instance, stolen electronics.
Executing the Search Warrant
The federal government and most states have laws that set out the way officers must carry out search warrants. These statutes specify requirements like:
- the way officers must identify themselves
- the period of time within which officers must conduct the search, and
- the time of day that the search must occur.
For example, federal law requires that a search warrant:
- specify that officers must execute it within 14 or fewer days and
- order the officers to execute it between 6:00 a.m. and 10:00 p.m., unless the judge finds a good reason for it to occur at another time.
(Fed. R. Crim. P. 41(e).)
Officers acting on a search warrant must also limit their search to the area described in the warrant. If a warrant authorizes a search of a residence, officers might not be within bounds in searching the guesthouse. Not only that, but officers must also confine their inspection to places that could possibly contain the relevant evidence. For instance, they can’t open a drawer that’s smaller than the gun they’re supposed to be looking for.
In general, even if officers have a search warrant, they have to announce themselves and their purpose before entering a home. This “knock-notice” or “knock-and-announce” rule requires in most instances that officers not bust in until the occupant has refused to let them in or the officers have waited long enough without receiving a response.
The U.S. Supreme Court has held that officers don’t need to knock and announce themselves when there’s a threat of violence or reason to believe the occupants will destroy evidence. (Hudson v. Michigan, 547 U.S. 586 (2006).)
When properly executing a search warrant, any obviously incriminating evidence that officers happen upon—even if not described in the warrant—will likely be admissible in court if it was in “plain view.”
Suppose a search warrant calls for seizure of fraudulent checks, and, on their way in the door, officers see a bag of apparent cocaine lying on the entryway table. They may lawfully seize the bag.
Overlaying all the above rules is a requirement that officers executing search warrants act reasonably. As a counterexample, in one federal case, officers:
- refused to show the warrant even though the resident asked to see it
- didn’t allow her to get completely dressed, and
- held her outside for five hours in the heat with no food or drink.
The court excluded evidence the officers found during the search on a finding that they conducted the search unreasonably. (United States v. Thompson, 667 F. Supp. 2d 758 (S.D. Ohio 2009).)
Questions for Your Attorney
- Is search-and-seizure law more protective in my state than in others?
- When can officers search a home pursuant to “exigent circumstances”?
- What happens if my roommate or guest, or someone who only seems to live in my home, consents to a search?
- Where can officers search pursuant to a “protective sweep”?
- Where can officers look when searching “incident to arrest” in a home?
- What if any remedy do I have if the warrant or search was “bad”?