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Police Searches without a Warrant

UPDATED: July 18, 2012

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Searches without a warrant are allowed only if the search is reasonable. According to the U.S. Constitution, to be reasonable a search must generally only be conducted with a search warrant. However, there are exceptions to the requirement that searches may only be conducted with warrants. This means that a search without a warrant is allowed, as long as it is deemed reasonable by the courts.

Consent to Search

The first exception to the warrant requirement is consent; a search is reasonable and permissible if the police are given consent to search.  The issue that usually arises is whether consent was voluntary. When officers tell someone to consent or they will have to arrest them, then the consent is not voluntary, and it is more likely to be an unreasonable search and/or seizure.

Searches Conducted Incident to Arrests

The second main area of warrantless searches involves searches incident to an arrest. If the officer observes a person violating the law or if they are aware of a warrant for a person's arrest, they are authorized to arrest the person and make a reasonable search incident to the arrest. If someone is pulled over for a traffic stop and the officer learns during the stop that they have a warrant out for failing to pay speeding tickets, they are authorized to make an arrest and conduct a search of the person as a result of the arrest. In addition, the officer may search the area in which the person was found where accomplices might be hiding or where the person might reach to retrieve weapons. This type of search is supposed to be limited to these areas. If the officer wishes to search an area in which a suspect was arrested more thoroughly, a warrant is required unless one of the exceptions discussed here applies separately.

Evidence or Contraband in Plain View  

A similar search exception is related to the “plain view” doctrine. If an officer sees contraband on your person or in your car in plain view (visible to anyone), then they have probable cause to search and seize the contraband. For example, if you are pulled over for speeding and an officer notices and open container of beer in the cup holder, many states authorize officers to arrest you and search your person and your car for other evidence, e.g. - more beer. If during that search they find other contraband, like drugs, you can also be charged for possessing illegal substances. If an officer is in your home for a lawful purpose (with a warrant or under an exception to the warrant requirement) the officer may also seize items if there is a reason to believe that the item is evidence or contraband.

Automobile Searches

The Constitution only protects people from searches of places or things in which they have a reasonable expectation of privacy, such as their person or their home. Due to the nature of cars and their mobility, the Supreme Court has determined that people have less of an expectation of privacy in their automobiles. For this reason, the police only need probable cause to search an automobile, they do not need a warrant. However, the police may only conduct a search that is reasonable according to the probable cause that they have. For example, if the officer has probable cause to believe that the driver is transporting undocumented immigrants, he may search the trunk of the car but not the glove compartment.

Exigent Circumstances

The last major set of warrant exceptions relate to exigent circumstances. Exigent circumstances usually involve some type of emergency situation. If the police have reason to believe that they or someone else is subject to immediate danger, the police can justify a warrantless search to protect themselves or others. If the police receive a call involving a domestic dispute and then while near the house hear evidence that someone is being harmed, they can enter to protect the perceived victim. The search will be upheld, even if it’s later discovered to be a misunderstanding, because the entry was reasonable under the circumstances. Police can also enter a house when they are in hot pursuit of a defendant. There is no “home base” rule. If the police follow you to your home, they are authorized to continue the pursuit to prevent your escape or the destruction of evidence.

These are the general exceptions when the police can search you, your home, or your car without a warrant. Some states provide more protection from warrantless searches than the U.S. Constitution. Other types of relief may also be available through your state’s laws. If you are concerned that you have been the victim of an illegal search, contact a criminal attorney in your area.

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