What are Your Rights if Police Want to Search Your Home?

What are your constitutional rights if police want to search your home?

Do you have to consent to a search? Do they need a warrant? What rights do you have?

In this article, we will discuss what your rights are when police come to search your home, including:

• When police need a search warrant to search your home,
• When police can search a vehicle at your residence without a search warrant, and
• The many exceptions to the warrant requirement that might apply when police search your residence.

What are Your Rights if Police Want to Search Your Home?

As with vehicle searches, the Fourth Amendment also protects your right to be free from unreasonable searches of your home.

The Fourth Amendment says, “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.”

Article I, Section 10 of the SC Constitution contains an almost identical provision, except that it also includes an express right to privacy: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy 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, the person or thing to be seized, and the information to be obtained.”

Do Police Need a Warrant to Search Your Home?

The Fourth Amendment and Article I, Section 10 of the SC Constitution require a showing of probable cause that evidence of a crime will be found, that a crime is being committed, or that a person or property should be seized.

In most cases, the law enforcement agency that wants to search a residence must first ask a magistrate for a search warrant. The search warrant must be presented to the magistrate with an affidavit – “supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.”

If there is no search warrant, or if the affidavit does not state probable cause, do not interfere with the search – you will have the opportunity to challenge the probable cause for the search warrant later in court.

Exceptions to the Search Warrant Requirement When Police Want to Search Your Home

Much of Fourth Amendment law is concerned with the many exceptions to the search warrant requirement – so many exceptions that it is often said that “the exceptions swallow the rule.”

When are police allowed to search a home without first applying for a search warrant?

Consent

The easiest way to get around the search warrant requirement is to ask the homeowner for consent. In most cases, if the homeowner gives their permission to search, no warrant is necessary.

To “shore up their case,” police will often obtain a search warrant and obtain consent to search, making doubly sure that the warrant cannot be challenged in court.

Don’t consent to government searches of your person or property. Even when you have nothing to hide. The government (law enforcement) is regularly testing the boundaries of the Bill of Rights, and the government (prosecutors and judges) is regularly eroding the limits of your constitutional rights.

Assert your rights. Say, “I do not consent.”

Use it or lose it….

Knock-and-Talk

Federal law allows a police officer to knock on your door and attempt to engage you in conversation – even with no warrant or probable cause that a crime has been committed. (See, Florida v. Jardines, 569 U.S. 1 (2013)).

In State v. Ferguson, however, the SC Supreme Court held that SC’s additional right to privacy requires “some threshold evidentiary basis for law enforcement to approach a private residence” in our state.

Police in South Carolina must have a “reasonable suspicion” that a crime is occurring before approaching and knocking on a private residence’s door.

Other exceptions to the Fourth Amendment’s warrant requirement include:

• Automobile Exception – do police need a warrant to search a vehicle on the premises of a person’s residence? Ordinarily, police do not need a warrant to search a vehicle that could be driven away, but see Arizona v. Gant,
• Terry Frisk – if police have a reasonable suspicion that “crime is afoot,” they can do a pat-down pursuant to Terry v. Ohio,
• Plain Feel Exception – if, while performing a Terry Frisk, police feel something that is clearly contraband, they can seize that thing,
• Search Incident to Arrest – if a person is going to be arrested regardless, police can search that person and the immediate area around them without a search warrant,
• Plain View Exception – if police can see contraband or evidence “in plain view,” they can seize it without first getting a search warrant,
• Hot Pursuit – in most cases, police do not need a warrant to pursue a suspect into a residence (but see Lange v. California – whether hot pursuit is justified depends on the seriousness of the offense and the likelihood of destruction of evidence and danger to the officers,
• Exigent Circumstances – if there is an emergency that makes it impractical or dangerous to wait for a warrant, police can enter a residence without first getting a search warrant,
• Protective Sweep – police can do a “protective sweep” of a residence to ensure there are no threats to the officers,
• Open Fields – there is a reduced expectation of privacy in “open fields;” therefore, a warrant may not be required, and
• Special Needs Exceptions – the courts have carved out numerous exceptions to the search warrant requirement under the umbrella of “special needs,” including probation and parole searches, school searches, administrative searches, DUI checkpoints, border patrol checkpoints, border searches, and foreign intelligence surveillance (FISA).

Got Axelrod?

If you have been charged with a crime based on an illegal search and seizure, get an experienced criminal defense attorney on your case immediately. We will investigate your case, get your case dismissed, negotiate an outcome that is acceptable to you, or try your case to a jury.

Call Axelrod & Associates now at 843-258-4254 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.