Citizens have a right to protect their homes from unjustified invasion by the government. A person’s home is one arguably the most protected areas under the United States constitution and most state statutes.
Because of the interest citizens have in protecting their home, police need to have a good reason to come in.
1. Police should have a warrant
Generally, in order to search a home, the police must have a warrant supported by evidence, signed by a judge. That means police can’t barge in on a hunch. If police ask to search someone’s home, the person at the door should demand to see a warrant.
If they don’t have one – simple, they can’t come in. Though the general rule requires a warrant, there are some exceptions which can be used by police to bypass the warrant requirement.
2. Consenting to a home search destroys the requirement for a warrant
If someone at the home consents to a search, there is no longer a need for a warrant. Consent to search the home can be given not only by the homeowner, but anyone who lives there or otherwise has the authority to consent to the search.
If the police get consent from someone who they believe lives in the home, but who actually does not have the authority to consent to a search, the police can still use any items obtained in the search at trial.
For example, if an aggrieved ex-boyfriend still has the keys to his former girlfriend’s apartment, and the police think he lives there, they can use his consent to search the home even though this is an unfair result.
Therefore, it is in every homeowner or renter’s best interest to make sure that former roommates, partners, or anyone else who lived in the home returns the keys. People with roommates or other living partners should make sure that they know to refuse consent to a search.
3. The “plain view doctrine” is a big exception to the warrant requirement
The plain view doctrine is a legal term that means if police can see something without digging around, it can be used as evidence.
If police are in a home for any valid reason, or if they are outside of a home and can see through an open window, opened garage door, or something similar, contraband that is in plain view can be seized.
This means that if police are called to a home after receiving a call about, for example, a domestic dispute, and they step through the front door and see drugs, paraphernalia, or other contraband, they can seize it without a warrant.
The plain view doctrine does not allow police to open drawers or otherwise tamper with an item to determine if it is illegal (e.g. police can’t read the serial number on a TV and check it with the stolen property registry).
The plain view doctrine usually applies when the police are in the home because of an emergency call.
4. Home searches can be limited
Even if the police have a warrant to search a home, the warrant doesn’t mean they can look through everything. They are limited to searching for whatever is listed in the warrant.
For example, if the warrant says that police can search the house for a stolen TV, they can only look in places where the TV could be. A TV would obviously not fit in a kitchen drawer, so if the police open a kitchen drawer and find drugs, the drugs could be excluded from trial didn’t have a right to search the drawer.
Also, if the police are given consent to search a home, they are only allowed to search the areas consented to. So, if one roommate gives the police consent to search an apartment, but lets police know that the master bedroom belongs to his roommate and his roommate is not home, the police should not search the master bedroom because they don’t have the consent to do so.
5. Evidence obtained in home searches can be fought against and excluded
Some people believe that if police find something inside one’s house, the evidence will show up in trial. However, a good attorney can fight against that evidence ever being presented in trial.
For example, he can examine the warrant to make sure police didn’t exceed their authority, he can determine whether the search was carried out legally, and he can argue that evidence obtained should be excluded because it was not included in the warrant and not in plain view.
Contact Abdallah Law Today
The team at Abdallah Law is experienced in cases involving home searches and are ready and able to fight against police invasion.
Contact us at 312-854-2677 for a free consultation to discuss how bankruptcy may help you manage your debt and obtain a “fresh start” to your financial life.