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Update: The Supreme Court heard arguments in an emergency?circumstances case. The decision could make it much easier for police to enter your home without a warrant. When police knock at your door may they enter without a warrant if your response makes them suspicious you’re destroying evidence of a crime? We’ll find out. In the meantime, Justice Scalia advises, keep cool and ask police politely to come back later with a warrant.
You’ve heard the saying, “Your home is your castle,” and there’s a lot of truth to that. In fact, one of the cornerstones of the US legal system is the limitation placed on the police and other law enforcement agents when it comes to searches and seizures. And this protection is perhaps most important when it comes to your castle. The Fourth Amendment to the?US Constitution protects your right against unreasonable searches and seizures, especially when the police search your home. There are some general principles that every homeowner or occupant should know about when it comes to searches and seizures.
What’s a “Home?”
Your “home” is where you live. It may be a house that you own or rent, an apartment, condominium, even a motel or hotel room, or a boat. Generally, if you eat and sleep at a particular place, leave there to go to work and return there after work, etc., that place may be considered your “home” for purposes of the Fourth Amendment and search and seizure law.
As a general rule, the police need a search warrant before they can enter and search your home. A search warrant is a court order that authorizes the police to conduct a search. In order to get a search warrant, the police must convince a judge or a magistrate that there is specific evidence of crime in your home. This is called “probable cause.” If the judge or magistrate is convinced, he’ll issue a warrant.
The warrant must be very specific. It must state exactly where the search is to take place, like your house’s street address, or a specific room in the home; what specific items or objects are going to be seized, such as marijuana or specific jewelry reported as stolen; and when exactly the search is to take place, including a specific date and time.
Once the Police Are Searching
Once the police have a warrant, they may only look in the area specified in the warrant. Generally, they can seize only the things specified in the warrant, too. For example, if the warrant authorizes a search of your garage for marijuana plants, the police usually are not allowed to enter the inside of your home and look for marijuana in your bedroom. Likewise, they usually can’t search your car that’s parked in the driveway.
There are some exceptions to these general rules, though. For instance, if the officers see cocaine or a gun lying on the roof of the car or a work bench in the garage, they may seize it and use it as evidence against you. This is called the plain view doctrine. Similarly, the police aren’t restricted to your garage if they believe marijuana or cocaine is being destroyed elsewhere in the house, or believe someone in the house poses a threat to their safety, like an accomplice hiding in the house who may have a gun.
When a Warrant Isn’t?Needed
Despite the general rule, the police may enter and search your home, or even seize evidence of a crime or illegal items (“contraband”), like drugs, without a warrant under certain circumstances:
- Consent: If you’re the homeowner and the police ask if they can search the house and you agree, they can search the home without a warrant. Generally, children and minors can’t give consent to search. Also, if you have a roommate, she may give the police permission to search the common areas of your house, like the kitchen, but she can’t give consent to search your private living space, such as your bedroom. Once consent is given, anything they find in your home can be used against you and you can’t challenge the legality of the search and seizure
- Search incident to arrest: If you are being arrested, the police may search you and the immediate surrounding for weapons, contraband, and even make a “protective sweep” of the house to make sure there’s no one there that poses a threat to the officers or other persons in the house
- Exigent circumstances: These are situations where there’s no time to get a warrant because there’s an immediate threat or danger of someone getting hurt or the destruction of evidence. For example, if the police make arrest in the front yard and the homeowner is alerted to their presence, the police may enter the home if they have a reasonable belief that the homeowner is destroying evidence or poses a threat to the officers’ safety
Don’t Argue and Pay Attention
If the police show up at your door with a search warrant, let them in. Stay calm. Ask to see the warrant and read it carefully. Watch them as they search your home and make sure they restrict the search to the area specified in the warrant. Try to keep written notes about where the officers searched and what items they seized. Don’t argue with them. If they search in an area where they’re not supposed to or seize something not listed in the warrant, you can always challenge the search and seizure later if you’re charged with a crime.
If they show up without a warrant, you have two choices. You can ask why they want to search your home and then consent, or you can refuse to let them enter. If you don’t consent but the police insist on entering your home, stay calm. You don’t want to get into a yelling match, and you certainly don’t want to get into a physical altercation with the police. You may end up being charged with interfering with a police investigation, obstruction of justice, assault, or some similar offense. It’s probably best that you let them in, but make sure you tell them that you’re not consenting to the search. And, watch them carefully; keep notes about where they search and what they take.
If the police search your home and a court determines later that the search and seizure was unlawful, any evidence they seized during the illegal search can’t be used against you in court. The evidence will be “excluded.” This doesn’t mean, however, that the state or the prosecution has to drop or dismiss its case against you. The prosecutor may have other evidence against you.
For example, say that a large amount of marijuana was seized from your home. The court later determines that the search and seizure was illegal because the warrant allowed a search of the basement only, but the marijuana was found in the attic. It’s likely that the state won’t be allowed to use the marijuana as evidence against you. But, the prosecution may have a witness who can testify that she bought marijuana from you several times in the past, or police surveillance recordings and photographs of you selling marijuana. This evidence may be enough to get you convicted.