When do the Police Need a Warrant?

The Fourth Amendment to the United States Constitution appears to require law enforcement to obtain a warrant before searching your person or property. Of course, countless exceptions have been carved out of that requirement, and they can vary based on the specifics of a certain situation. If police searched your person or property without a warrant, you will want to contact an attorney at Banks and Brower to review your case and see if there’s anything we can do to help.

The exceptions to the warrant requirement generally fit into eight categories:

  • Stop and Frisk: In the legal community this is referred to as a “Terry Stop” due to the Supreme Court case Terry v. Ohio. This says that an officer who reasonably believes that someone has committed a crime or is about to commit a crime, then an officer can stop that person on the street. Further, if the officer believes this person may be armed, they are allowed to conduct a pat down.
  • Consent: Of course, if you consent to being searched, the officer is allowed to search you. You should almost never give an officer consent to search your person or your property. Once you give consent, you cannot take it back.
  • Plain View: If an officer is standing in a location that any member of the public could stand (at your car window, or on your front porch, for example), and can clearly see things that are clearly illegal in nature, then an officer can search without a warrant. A classic case is an officer who conducts a traffic stop and observes marijuana crumbs on the floor of a vehicle. The officer may now search the vehicle.
  • Exigent Circumstances: This is essentially “in case of emergency”. It has been boiled down into two categories: 1) prevent imminent destruction of evidence (officer is concerned that a drug dealer will flush the drugs down the toilet if he has to wait for a judge to issue a warrant), and 2) imminent danger (if an officer believes someone inside will be harmed if he does not enter immediately). The officer must be able to explain why he held this belief.
  • Hot Pursuit: If a suspect is fleeing an officer and runs into a home, the officer may follow that person into the home to effect an arrest.
  • Search Incident to Arrest: If you are arrested, the officer may search you or your vehicle without warrant. If you are arrested in your home, the officer may search anything in the immediate vicinity, but not the whole home.
  • Automobile Exception: If an officer believes a vehicle may contain something illegal, they may search the vehicle. The classic case is when an officer conducts a traffic stop and smells marijuana coming from the vehicle. Even though the officer did not see marijuana, smelling it provides him enough belief that he may search the vehicle.
  • Inventory Search: If a vehicle must be towed or impounded, officers are not only allowed to, but are required to search the vehicle in order to take an inventory of everything in the vehicle. While this rule is supposed to protect the owner of the vehicle from having their items stolen by police officers, it is often abused by police to conduct warrantless searches. Police cannot just tow your vehicle. They have to offer an opportunity for you to contact someone to come and pick up the vehicle in a reasonable amount of time. If no one can come pick it up, then they may tow the vehicle, and therefore search it.

If you were charged with a crime as a result of contraband uncovered by a search of your person or property, contact and attorney at Banks and Brower immediately for a free consultation. The law surrounding searches varies on a case-by-case basis and every little detail matters. We would love to hear about your case.