By: Swazi Taylor, Esq. and Jay Mykytiuk
Open up, this is the police! This command is usually delivered with a loud pounding on your door, and usually means that police will soon be entering your home and searching your belongings. In the eyes of the law your home is your castle, but under some circumstances your rights in your residence give way to the power of law enforcement. But this power is not unlimited. The Fourth Amendment to the U.S. Constitution prohibits the police from conducting unreasonable searches and seizures. Determining what is reasonable can be complicated businessso complicated, in fact, that treatises have been devoted to the search and seizure issue. Although the law is complex and constantly evolving, there are several basic rules that govern when, where, and how police officers may search an individuals home. The more familiar one is with these rules; the better-equipped one will be at identifying an illegal search.
Absent exigent circumstances, the general rule is that police officers may only enter a persons home with a search or arrest warrant based on probable cause. A search warrant gives the police the right to search a particular place, at a particular time, and only for particular items as approved by a judge. The warrant must clearly spell out what these items are, and generally, the police may not look for items that are not listed in the warrant. For example, if the search warrant authorizes the police to search for a rifle, police may only search places in your home that are big enough to hide a rifle. Therefore, in this example, a small bureau drawer or a jewelry box on that bureau would be out of bounds.
If the police enter a home pursuant to an arrest warrant, they may only search the areas into which the suspect might reach to obtain weapons or destroy evidence. This area is generally measured by the suspects wingspan.
There are circumstances, however, when police may extend a search beyond the terms of the warrant. The most significant of these circumstances is known as the plain view doctrine. Under the plain view doctrine, police who are lawfully searching a home may seize any items in plain view whose incriminating nature is immediately apparent. Even if the item is not listed in the warrant, if it is in plain view and obviously incriminating, police may rightfully seize it.
Generally before entering your home to serve a valid search warrant, police must knock on your door, and announce their presence, rather than simply forcing their way in. The so-called, knock and announce rule requires that police wait a reasonable amount of time for the resident to open the door. If you then refuse to let the officers in, they have the right to force the door open.
As is often the case with rules governing police searches and seizures, however, there are exceptions to the knock and announce rule. Police may forcibly enter your home without knocking and announcing when a more stealthy approach is required to ensure the safety of police officers or to prevent the destruction of evidence. Even when officers do knock and announce, they need only wait a few seconds before bursting in.
Just as there are exceptions to the knock and announce rule, there are also exceptions to the warrant requirement. First, police do not need a warrant to enter and search your home if they obtain the consent of an occupant. Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. Currently, the U.S. Supreme Court is considering what should happen when one spouse consents to a search of the house, while the other spouse does not.
Even without a search warrant and without the consent of an occupant there are still occasions when police may enter and search a home. Although there is no general emergency exception, the court will decide on a case-by-case basis whether an actual emergency existed that allowed police to conduct a warrantless search. Shots fired, screams heard, or fires emanating from inside a building have all been considered emergencies that justify searches without warrants. A federal appellate court recently ruled that the “strong aroma” of a decaying body, wafting through the open window of a dead man’s house, constituted an emergency exception to the Fourth Amendment’s warrant requirement. Essentially, anytime the police have a reasonable belief that and immediate search is required to protect the safety of individuals, police will be permitted to search without a warrant.
Although search and seizure law can be confusing and is constantly evolving, there are some basic steps you can take to protect your Fourth Amendment rights. First, remember that generally, without a warrant, police have no right to enter and search your home. If a police officer asks your permission to search your home you are under no obligation to consent. Consenting to a search automatically makes that search reasonable, and is essentially a waiver of your Fourth Amendment rights. Consequently, whatever an officer finds during such a search can be used to convict the person. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In fact, police officers are trained to use their authority to get people to consent to a search.
If the police have a search warrant, they may enter your home without your consent. In this case, there are still things you can do to protect yourself. Next, ask to see the warrant. If for any reason you believe that the warrant is not valid, make your objections clear to the officer, and announce that you are not consenting to the search. But remember that it’s always in your best interest to remain calm, polite, and non-confrontational. Even if you believe the search to be unreasonable, you have nothing to gain by interfering with the police officers. A person should not risk injury or a separate charge of “interfering with a police officer.” After voicing your objections to the search, simply stand aside and allow a court to decide later whether the officer’s actions were proper.
Most importantly, you should immediately contact a criminal attorney whenever you have been the subject of a search or seizure. In the event that the police have conducted an unreasonable search of your home, an attorney will seek to suppress the evidence discovered as a result of that search. This means that the illegally obtained evidence may not be used against you at trial. An experienced attorney will know how to protect you when your Fourth Amendment rights have been violated.
Tags: fourth amendment