One of the first rules of criminal defense a lawyer will tell you is to never, ever talk to police (or anyone else, for that matter) about your case without the presence and advice of your attorney. Another cardinal rule is never consent to a search without a warrant, although you could even take that a step further and say, "Never consent to a search." After all, if police have a warrant, then they do not need your consent. You cannot interfere, but you do not have to give your permission, either.
But it is important to understand some things about search warrants, what they mean, and when police might be able to lawfully conduct a search without either a warrant or your consent.
The Fourth Amendment protects citizens from "unreasonable 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, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Under this amendment, law enforcement generally has to have a warrant to search a person's home, vehicle, business, premises, or person. But note that the warrant must describe the place to be searched and the things to be seized.
In other words, a search warrant may be broad enough to allow a search of your entire home, property, and any outbuildings, or it may be specifically limited to an area of the home--a garage or an attic for example. The warrant must also list what police are searching for. This may be financial documents, illegal drugs, firearms, or other evidence of criminal activity.
Let us say police show up at your home following a nearby hit-and-run accident with a warrant to search your home and property for a damaged vehicle. They are bound by the limitations of that search warrant and would not be able to search somewhere the vehicle could not reasonably be--a hallway bathroom, for example. Nor would they be able to search in your bedroom drawers for illegal drugs if they were serving a warrant to search for a damaged vehicle.
One thing to note, however--what is in plain sight is fair game. So if the police open your garage door to look for a damaged vehicle and they find an indoor marijuana growing operation or a small meth lab in your garage instead, you can (and will) still be prosecuted for the drug crime, even though it is not the reason they showed up at your house.
So plain sight is one exception to the need for a warrant, but there are others as well. Law enforcement does not need a warrant to search if:
- They have consent;
- They need to search an area where a person who has been arrested could have hidden evidence;
- They believe the safety of others is at risk, or a criminal activity is occurring, the emergency exception may be used, and
- The search is incident to arrest, of the arrestee's person and the area in his or her immediate control.
For example, if a person is pulled over, and the officer asks, "Mind if I take a look inside your car," the officer does not need a warrant if the person he or she stopped allows the search of the vehicle.
If a person is pulled over on suspicion of impaired driving, and is subsequently arrested for DUI, the officer would not need a warrant to search the arrestee's pockets for drugs or weapons, and would not need a warrant to search the vehicle for beer bottles, drugs, or other evidence that would support DUI.
However, even if the search appears to be lawful under one of the above circumstances, it is important not to give consent. If you consent to the search, then you automatically make it a legal search and make it much more difficult for your attorney to get evidence obtained in the search suppressed.
If police show up at your home or business with or without a search warrant, call a lawyer immediately to ensure your rights are protected.
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