Exceptions to the search warrant requirements
In some cases, the police may ask to search but imply the resident doesn't have a choice. By letting the police search your property, they may be able to use any evidence of criminal activity against you. When police arrest a person based on probable cause that they are involved in criminal activity, they may search the immediate area as part of a search incident to a lawful arrest.
However, these searches are limited to the area within the suspect's immediate control. If the police have an arrest warrant for a person in your home, they may be able to come in and arrest the person, but if you do not consent to a search of the house, they may only be able to search the area immediately around the person who is being arrested. The exceptions of exigent circumstances or hot pursuit only allow for warrantless searches in certain emergency situations. If the police are in pursuit of a fleeing suspect, they may be able to enter public property without a warrant.
Similarly, if the police had a reasonable belief to believe that entry of property was necessary to prevent physical harm to another person or destruction of evidence, their warrantless entry may meet one of the exceptions to the rule. The police may not need a warrant to seize evidence of criminal activity that is in plain view.
For example, if the police pull you over for a traffic violation and see drug contraband in your back seat, they may arrest you for possession of drugs or drug contraband, and search the vehicle for other evidence of drug crimes. If the police search your property without a warrant and without one of the exceptions noted above, they may be violating your constitutional rights.
If you are arrested based on evidence found as the result of an illegal search, your attorney may be able to prevent that evidence from being used against you in court. This is generally done through a motion to suppress evidence. Under the Exclusionary Rule , evidence that was gathered through an unreasonable search may be excluded from use at trial. Even if the evidence shows the defendant was involved in an unlawful or criminal activity, suppression of the evidence means it cannot be shown to the jury at trial. If the evidence is all the prosecutor has, suppressing the evidence may mean they have no case against you, and your charges may be dropped.
If an unlawful search turns up evidence of illegal activity, and the police use that evidence to obtain a search warrant, evidence of the latter search may also be excluded. This is known as the Fruit of the Poisonous Tree doctrine. The United States Supreme Court has reasoned that the first illegal search tainted the evidence obtained in the later search, even if police later used a warrant. If you have any questions about search warrants or unlawful searches by police officers, please contact us at Colorado Legal Defense Group. In order to receive your best possible defense to criminal allegations, it is important to know these constitutional rights and the potential arguments a prosecutor may raise.
One of the most important defenses a defendant can assert to their criminal charges is the unlawfulness of certain searches and seizures. The Joslyn Law Firm can help you avoid the most severe penalties and punishments for your criminal charges in Columbus, Ohio. Brian Joslyn will make every effort to find possible defenses or mitigating factors in your situation. Call the Joslyn Law Firm at for a free consultation today. Searches and seizures in violation of the Fourth Amendment are presumptively unreasonable unless the prosecution can meet its burden of overcoming this presumption.
When a defendant raises a Fourth Amendment search and seizure violation as a defense to the charges against them, the prosecution may attempt to raise one or more of the following arguments. If the arrest conforms to probable cause requirements, the search is constitutionally valid. State v. Wangul , Ohio App. Jenkins , Ohio App. The plain view exception to the warrant requirement does not apply when the search and seizure extend beyond the visible purview or area where the evidence is located, State v. Simmons , Ohio App.
Similarly, evidence seized in plain view is not justified in the absence of a warrant, valid consent, or exigent circumstances to justify entry onto premises to seize the evidence, State v. Hawkins , Ohio App. Authorization to search for evidence can provide the prosecution with an exception to the warrant requirement, Schneckloth v.
For example, if a warrant specifies that the police are searching the backyard of a home, they cannot legally also search the home or vehicle of the individual.
When Can the Police Conduct a Search without a Warrant?
In addition, they must only search for what is specified in the warrant. There are times when police can perform a search without a warrant, and most searches actually do occur without warrants being issued. That is not to say the police can barge into your home and search it without a warrant; if there is a reasonable expectation of privacy and there is not probable cause, a search warrant is required. However, if probable cause does occur, such as the suspect runs away, a gunshot is heard from another room in a home, or even when an individual makes a sudden movement, a search becomes legal without a warrant.
Even with a reasonable expectation of privacy, the police can legally conduct a search without a warrant in situations in which certain exemptions apply.
Exemption 1 — Consent: If an individual freely and voluntarily agrees to a search of his or her property, without being tricked or coerced into doing so, the police can search this property without a warrant. Police do not have to inform you that you do, indeed, have the right to refuse a search, and individuals have been arrested and even sent to jail because they did not know they had the right to refuse search and seizure.
If two or more people live at the same location, usually one tenant cannot consent to a search of areas owned by another tenant. A tenant can, however, consent to a search of the common areas of a home, such as the living room or kitchen. A landlord is prohibited from giving consent to the search of his or her tenant's private belongings, and the Supreme Court has also ruled that an individual cannot consent to the search of a house on behalf of a spouse. An employer, however, can consent to a search of a company, which includes an employee's work area, but not an employee's personal belongings.
Exemption 2 — The Plain View Doctrine: Police officers can legally search an area and seize evidence if it is clearly visible. If the police see an illegal act occurring outside of your home, they may perform a search and seize evidence from your home without a search warrant. For example, if a police officer stops a driver for speeding and sees marijuana in the window, a search can be conducted without a warrant. The police must still have probable cause, however, that the items are indeed illegal.
Exemption 3 — Search Incident to Arrest: Police officers do not need a warrant to perform a search in connection with an arrest.
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If you are arrested for a crime, the police have the legal right to protect themselves by searching for weapons, evidence that could be destroyed, or accomplices to the crime. For example, if you are arrested for drug possession, the police can search for additional drugs by searching you, your home, or your car, and any evidence found can be used against you in a court of law. This is done if the police believe a dangerous accomplice or accomplices may be hiding inside a specific location.
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The police will walk through the location and can legally visually inspect places in which an accomplice may be hiding. In addition, the police can legally seize any evidence located in plain view during the sweep. Exemption 4 — Exigent Circumstances: If the police feel that the time it would take to get a warrant would jeopardize public safety or lead to the loss of evidence, they can perform a search without a warrant.
Case Law 4 Cops Article-Search Warrant Exceptions
For example, the police can forcibly enter a home if it is probable that evidence is being destroyed, if a suspect is trying to escape, or if someone is being injured. The police officer's responsibility to preserve evidence, arrest a suspect, or protect an individual outweighs the search warrant requirement. If the police show up at your doorstep claiming they would like to look around, you are legally allowed to refuse this request.
However, many times it is in your best interest to allow access in order to avoid injury or being charged with interfering in a police investigation. That being said, you are not required to give consent to a search without a warrant, and you should always ask the police officers for identification and an explanation as to why they are at your location.
If the police do have a warrant, you can ask them to read the search warrant to you. If a search of your home or vehicle has already occurred and you are not sure if it was done legally, you should contact a criminal defense attorney and be apprised of your legal rights going forward. Need legal advice but don't want to pay expensive hourly fees to a law firm attorney?
Search and Seizure Frequently Asked Questions
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