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Posted on February 1, 2017 by Law Office of Brett A Podolsky
When Are Police Allowed to Search You or Your Property?
The Fourth Amendment of the Constitution protects all citizens against unlawful search and seizure. That protection allows Americans to go about their lives without the fear of unreasonable government intrusion. It is important to know when and where police searches are lawful in order for the checks and balances of society to remain in place. While police officers are often depicted as having near limitless authority over other citizens, the reality is that their powers of search and seizure are restricted.
Know Your Rights
A police officer cannot arrest you or search your property without having justification. The Fourth Amendment protects against unlawful search and seizure. If a police officer searches you or your property without a warrant, your permission, or an otherwise valid reason, they are violating your constitutional rights.
Searches Conducted with a Warrant
There’s a familiar scene in seemingly every episode of every crime drama where the police burst into a home and hold up a search warrant to the surprised owners. A search warrant is a legal document issued by a judge that allows a police officer to enter and search a home, vehicle, or other form of property. Police officers obtain search warrants by convincing a neutral judge that there is probable cause to believe that criminal activity is occurring at the place in question or that evidence of a crime may be found there.
A search warrant will specify where exactly police officers may search and for what they may search. Police officers can search only for what the warrant describes and only in the premises that the warrant describes. However, if police come across other contraband or evidence of a crime that is not listed in the warrant, they can often seize it.
Searches Conducted through Consent
What if the person freely allows the police officer to search his or her home or vehicle? If a police officer asks you if they can take a look in the back of your car and you say yes, then you have consented to a search. Similarly, if they ask to come in and look around your house and you say yes, then you have consented to a search. Both searches are valid under the law as you have given your consent and waived your fourth amendment rights in the process.
What many people do not know, or do not think of in the moment, is that we all have the right to refuse consent to searches. You do not have to give the police permission to search your property, whether it be your car or your home. That does not mean that you should ever physically resist a police search, but simply stating you do not consent to searches does a great deal to protect your rights. To reiterate, you should only ever verbally refuse, never physically resist.
Searches Conducted Lawfully without Consent or a Warrant
We have all heard of the notion of probable cause and it is often a tricky topic to understand. Having probable cause to search means that the facts and circumstances known to the police officer provide the basis for a reasonable person to believe that a crime was committed at the place to be searched, or that evidence of a crime exists at the location.
For example, if a police officer stops you for running a stop sign and sees a bag of cocaine sitting on your passenger seat in plain view, they will have probable cause to search your vehicle and your person. However, if a police officer stops you for the same reason and merely sees that your eyes are bloodshot, that does not give them the right to search your vehicle in the clear majority of cases. A reasonable person could not conclude the presence of drugs in the car from merely the driver’s bloodshot eyes, but clearly could assume there were more drugs in the car after seeing drugs in the passenger seat.
Many probable cause circumstances can become complicated. Failing to defeat an improper search can be difficult. If you believe that a police officer did not have probable cause to search your vehicle, you should contact a criminal defense attorney and discuss the exact situation with them.
Other Circumstances Under Which the Police May Search You, Your Vehicle, or Your Home:
- If you have been arrested, a police officer has the right to search both your person and the area within your immediate control.
- If there is an emergency, in other words, if the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence, an officer has the right to search you. For example, if a police officer hears shouts and screams coming from a home or hears one man yell to a man inside of a home to “flush the drugs,” the officer has grounds for emergency.
- And more, consult a criminal defense attorney with the specifics of your case.
What if My Car was Impounded?
If your car has been towed and impounded by the police, they have the authority to search the vehicle without a warrant. The search can be as extensive as the police wish and even locked compartments or boxes may be opened. The police have the authority to search your vehicle regardless of the circumstances under which it was impounded. However, police cannot tow and impound your car for the sole purpose of conducting a search.
What Should I Do if I Have Been the Victim of an Illegal Search and Seizure?
If you believe you have been the victim of an illegal search and seizure, you should consult an experienced criminal defense attorney. A knowledgeable criminal defense attorney will give you the best chance of dismissing evidence found illegally and avoiding criminal sentencing. It is always in your best interest to seek legal representation.