This useful primer provides an overview of the search warrant procedure, including your right to decline a search, why a warrant is not necessary, and what to do if the police arrive at your home.
There are few exceptions to the rule that the police cannot search your house or possessions without a warrant.
The Fourth Amendment to the United States Constitution protects private persons from excessive searches and seizures. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” the amendment states.
Police officers must get written authorization from a court of law to properly search a person and their property and collect evidence when investigating alleged criminal behaviour, according to the Fourth Amendment. In addition, evidence gathered via unlawful searches is not admissible in court.
Table of Contents
What Exactly Is a Warrant?
A warrant is a legal document authorised by a court that authorises police to search a particular area and take certain documents from that location at a given time. To get a warrant to search a specific location for evidence of a crime, the police must show the court, using sworn declarations, that they have probable cause or a reasonable suspicion that a crime has occurred.
The police will supply their own proof for the warrant, and the suspect will be absent when it is granted. After obtaining a warrant, the police may only search the site stated in the request, whether it be a house, a vehicle, or a designated outside location. For example, if a warrant states that the police are searching the backyard of a house, they cannot lawfully search the individual’s home or car. Furthermore, they are only allowed to search for what is mentioned in the warrant.
When Is a Warrant Not Necessary?
There are circumstances when police may conduct a search without a warrant, and most searches are conducted without warrants.
A search warrant is necessary if there is a reasonable expectation of privacy and there is no probable cause.
However, if probable cause is established, such as when a suspect flees, a gunshot is heard from another room in a house, or a person makes a quick movement, a warrantless search becomes authorised.
Even if you have a reasonable expectation of privacy, the police may legitimately conduct a warrantless search if specific exceptions apply.
1st Exemption: Consent
The police may search a person’s property without a warrant if the subject freely and willingly agrees to a search of his or her property without being duped or pressured into doing so. Police are not required to tell you that you have the right to decline a search.
When two or more persons reside in the same house, one tenant normally cannot agree to a search of areas held by another tenant. A renter, on the other hand, may agree to a search of a home’s common spaces, such as the living room or kitchen.
A landlord cannot agree to a search of his or her tenant’s private items, and the Supreme Court has decided that a person cannot consent to a search of a residence on behalf of a spouse. An employer, on the other hand, may agree to a search of the firm, including an employee’s work space, but not an employee’s personal items.
Exemption 2: is the Plain View Doctrine.
Police officers have the legal authority to examine a location and collect evidence if it is readily evident. If the authorities see an unlawful act taking place outside your house, they may conduct a search and take evidence without a search warrant. However, the authorities must still have reasonable cause that the objects are prohibited.
Exemption 3: Arrest-Related Search
A warrant is not required for police officers to conduct a search in conjunction with an arrest. When you are detained for a crime, the police have the legal authority to search for weapons, evidence that might be destroyed, or collaborators to the crime. For example, if you are caught for drug possession, the police may search you, your house, or your vehicle for further narcotics, and any evidence obtained can be used against you in court.
Following an arrest, police might also conduct a “protective sweep.” If the authorities suspect a hazardous accomplice or accomplices are hidden within a certain area, this is done. The police will stroll across the area and have the legal authority to physically investigate any areas where an accomplice may be hiding. Furthermore, the police have the legal authority to take any evidence found in plain sight during the sweep.
Exemption 4: Extremely Urgent Circumstances
If the authorities believe that the time it would take to get a warrant would threaten public safety or result in the loss of evidence, they may conduct a warrantless search. For example, if it seems likely that evidence is being destroyed, a suspect is attempting to flee, or someone is being hurt, the police may forcefully enter a property. The obligation of a police officer to preserve evidence, apprehend a suspect, or safeguard a person surpasses the need for a search warrant.
Understand Your Rights
If the cops arrive at your house and say they want to look around, you have the legal right to refuse. However, it is sometimes in your best interest to provide access in order to prevent harm or being prosecuted with interfering with a police investigation. That being said, you are not obligated to submit to a warrantless search, and you should always ask police personnel for identification and an explanation of why they are at your place. If the police do have a warrant, you may request that it be read to you.
If you have previously had a search of your house or car and are unsure if it was done lawfully, you should consult a criminal defence attorney to learn about your legal options moving forward.