When Can Police Search a Person’s Home?
All police searches of a person’s home require a search warrant unless one of the recognized exceptions to the warrant requirement applies.
As detailed below, situations that permit police to search a person’s home without a warrant include consent, hot pursuit, exigent circumstances or imminent danger. Otherwise, people have the right to deny consent to search their premises when the police show up without a search warrant.
What is a “home” when police want a search a person’s home?
When it comes to the search warrant requirement, the law defines the scope of a person’s home to include areas besides just the inside area. As such, law enforcement cannot search or enter a person’s yard without a warrant or probable cause.
The same applies to cars parked on the home’s private property, such as the driveway, lawn or garage.
In addition, courts have recognized occupied hotel rooms as similar to primary residences for search warrant purposes. Unless they have a warrant, the police cannot search an occupied hotel room without the consent of the registered guest.
What does a search warrant contain?
A search warrant means that, based on probable cause, a judge authorized the police to search for specific items at a particular place and time. For example, a search warrant for the home office of an accountant suspected of tax fraud will generally indicate that police can search the home office, including desks, document bins, file cabinets and work or personal computers.
Such a warrant will specify the accountant’s home address and even the time frames during which police may conduct their search.
To obtain a search warrant, officers must convince a judge that they have probable cause (a reasonable suspicion based on facts) to believe that criminal activity is occurring at the place to be searched or that they might find evidence of a crime. Judges have the power to restrict aspects of the warrant as they see fit.
Search warrants are presumed to be lawful. When a warrant lacks sufficient detail, or overzealous police officers search beyond the scope of what the judge authorized, defense counsel can challenge the search as a Fourth Amendment violation. The Fourth Amendment of the US Constitution protects people’s right against unreasonable searches and seizures.
For police officers and prosecutors, the consequences of searching beyond the scope of a warrant can be harsh. If a judge reviewing the warrant and the search after the fact finds improprieties, the judge may suppress the evidence collected from the search and ban prosecutors from using it.
What are recognized exceptions to the search warrant requirement for a home?
Courts review challenges to warrantless searches of a person’s home on a case-by-case basis. Still, warrantless searches of a home have been found valid under the following scenarios:
When police arrest someone at home, they may then search the person and areas within their immediate control in a search incident to the arrest.
Where the police observe contraband or illegal activity in plain view, police may enter and search.
Where the homeowner (or an authorized person) consents to search, police may also search. Courts have upheld home searches where police obtained the consent to search common areas from an adult residing within the home.
A housekeeper generally cannot give valid consent for police to search a home where they work. But there may be an exception if the housekeeper lives in the home.
A landlord also cannot consent to the search of a tenant’s private areas or belongings. Only a tenant listed on the lease agreement can consent to search an occupied rental property. However, when the police have a proper search warrant, the landlord must allow them to enter the rental property, even if the tenant is not there.
These are just some examples of consent issues that can arise. Additional rules govern the issue of who (roommates, children, etc.) can provide valid consent in various scenarios when police do not have a warrant.
In the case of exigent circumstances, police can search. Examples include a medical emergency, threats or danger to people’s lives, or where the possible destruction of evidence might be underway. These are scenarios where time is of the essence and police are facing an emergency.
Police in hot pursuit of a suspect, where they chase the person into a home or building. They can follow the person and search anywhere they might be hiding. Hot pursuit scenarios are sometimes considered a form of exigent circumstances.
Police sometimes invoke an automobile exception when they have probable cause to believe the car is mobile and contains contraband.
In general, for police to search a person’s home they must have a warrant. Otherwise, a legally recognized exception must apply. Most of the time, the easiest way for police to legally search a home is by asking for your permission. But you don’t have to agree to a search.