One scenario that plays out every day is this – the police show up at a person’s home. They want to come in and look around. They may have a search warrant or, alternatively, they may just ask if they can come in because they received a “report” and they “just want to clear some things up.” One question you may have if this happens to you is simple – can they come in to search, or can I say no?
Before we can answer that question, it is helpful to know that there are a few ways for a search of your home to be done. First, they can search if they have a valid search warrant to come into your home to look for evidence. Second, they don’t have a warrant but there is an exception that allows them to enter your home without a warrant and without your consent. Third, they can enter a home to search if they have permission to do so.
The most cut-and-dry issue, at least at the time of the search, is if law enforcement has a search warrant signed by a judge. This is an order from the court that there is probable cause to believe that within your home there is evidence of a crime and an authorization for law enforcement to enter your home to locate it. At the time of the search there is not a lot a person can do to stop the search from happening – most search warrants authorize law enforcement to not only search your home but to take reasonable steps to gain entry into your home to execute the search. This includes forcing their way into your residence to conduct their search even if you refuse to open the door and let them in. Most people, to avoid damage to their home, just allow law enforcement to come in and conduct their search rather than having them break down their door.
So, if this is a simple issue, what can you do about it? Even if there is a search warrant that allows them to search your home there are ways to contest it. That starts by getting a lawyer and challenging whether there was actually probable cause for them to have the search warrant granted in the first place. In order to get a judge to authorize a search warrant, law enforcement submits a statement of probable cause, meaning they tell the court, usually in writing, why they believe evidence of a crime will be located in your home. In retaining a lawyer, they will review the affidavit of probable cause and can challenge whether or not law enforcement actually provided facts sufficient to have a search warrant issued in your case. If not, your lawyer can file a motion to have the search warrant deemed illegal and, in that case, anything they located during the search would be suppressed, or not able to be used.
There are also procedures that have to be followed in order to validly execute a search warrant. For example, if the search is to be done at night the search warrant has to explicitly authorize that the search can be done during the nighttime hours. The law and the Constitution recognize that a person has a high expectation of privacy in their home, and that expectation of privacy is higher at night than during the daytime. So, in order to conduct a nighttime search, they have to show good cause that it has to be done at night, some reason that the search cannot wait until the next day. This is typically due to the risk of destruction of evidence (and there has to be a reasonable belief evidence will be destroyed rather than just a hunch or assumption by law enforcement that it might be) or an emergency situation where someone would be in danger if it isn’t executed immediately.
Another issue arises where law enforcement doesn’t have a warrant, but they are excused from getting one because of some exception to the warrant requirement. These exceptions include things like “exigent circumstances” (an emergency that requires law enforcement to go in right away) and what is known as the “plain view doctrine.” The courts have determined that there are certain situations where, while law enforcement does not have a search warrant, they are going to be allowed to conduct a search anyways.
Exigent, or emergency, circumstances occur in a few ways. If law enforcement is responding to an assault or domestic violence report, for example, and hear someone inside screaming for help the law does not require them to go through the process of getting a search warrant before responding to the cries for help. If they form a reasonable belief, and the key here is reasonable, based upon the circumstances that evidence will be destroyed if they do not make immediate entry into a home they are allowed to do so. Or, if they reasonably believe that a person who has committed a crime will flee or escape if they do not immediately go into the home to pursue them, they are allowed to do so. This all boils down to whether or not a reasonable officer in their position would believe that if they did not enter there is a likelihood of someone being harmed, evidence being lost or destroyed, or someone who is suspected of committing a crime will escape.
Alternatively, if law enforcement knocks on your door to talk and observe something illegal in your home then we run into what is known as the “plain view doctrine.” This essentially means that law enforcement has observed something illegal in your home that they can observe without entering your home, which the courts have deemed to establish probable cause based upon their observations. To put it more simply, if law enforcement observes something that is a crime, they are allowed to investigate that crime without having to seek out the courts permission to do so.
These exceptions create more issues for an attorney to sort through, and that is because they are based upon the question of whether the conduct or actions of law enforcement were reasonable under the circumstances. So, for example, law enforcement is investigating a drug case, and they try to argue that it was an emergency because drugs can easily be disposed of or hidden the search can be deemed illegal because they have to have some specific indication as it relates to that specific circumstance that the evidence will be destroyed, not simply that it could be. Or, if they claim there was an emergency because they heard someone screaming for help, but your lawyer reviews their body camera footage and can’t hear anything, all the lights are off in the home, and your lawyer talks to the neighbors who say they didn’t hear anything despite being awake at the time you can challenge whether an actual emergency existed at the time. Again, the question is whether or not, based upon the facts and circumstances known to law enforcement at the time, their belief that there was an emergency was reasonable or not.
The final situation is where a person in a home consents to the search. This arises when law enforcement comes to their home, asks permission to come in and do a search of the home, and the person gives them that permission. This is generally permitted because, while we have a right and expectation to privacy in our home, if we invite law enforcement in to search our homes, we give up our expectation of privacy and they are allowed to conduct their search.
A few things to keep in mind with a consent search, though. First, you will still want an attorney to look it over because the consent has to be freely and voluntarily given. So, if law enforcement asks permission and indicates that if you don’t give them permission they are going to break down the door and do it anyways that is unlikely to be consent that is freely and voluntarily given. Second, you can terminate your consent to search at any time after it has begun. So, if you consent to a search and then change your mind you can tell law enforcement you are no longer consenting to the search and request that they leave. However, you cannot terminate your consent to search if they have found anything illegal during the consent search that was done. So, if you consent to a search and law enforcement locates drugs in your home, you cannot at that point tell them to leave because they would have probable cause to search at that time.
The piece of advice I give people when asked to consent to a search is to just say no. A lot of people consent to the search because they think it makes them look guilty if they don’t. That is an understandable concern. However, look at it differently. If law enforcement did not believe you were guilty of something or had something illegal in your home, they would not be asking to search your home in the first place. If the police are at your door and asking to search your home, they likely already believe you are guilty, so the advice I give people is to not do their job for them. If they want to search your home, they can seek out a search warrant for your home and go through that process. Another reason people consent to a search of their home is if they don’t believe there is anything illegal in their home at all. However, think of how many people come and go from your home. You may have friends, siblings, parents, children, or friends of your children who are in and out of your home. Do you know for sure that they didn’t leave something illegal in your home, or drop something illegal accidentally in your home? If they did, and law enforcement finds it, you may be taking the blame for that. The best way to handle it, generally, is to not consent or, at a minimum, ask if you can call a lawyer before you make that decision.
When your home is searched, and especially if something illegal is located in it, it can be a scary and nerve-wracking time for a person. However, there are ways to fight back against that search. You can challenge the warrant, you can challenge an exception to a warrant, and you may be able to challenge a consent search of your home as well. The most important thing to do is to contact an experienced lawyer who deals with these issues regularly to look over your case and help you challenge that search. If you have found yourself in this situation, don’t try to work through the issue on your own. Contact Curran Law Firm today and see what we can do to help you.
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