Recently we tried a criminal case where our client was facing significant jail time if…
In the United States we are very lucky to have the constitutional right to avoid “unreasonable search and seizures.” Your property can still be searched by the police, but they have to have “probable cause” in order to do so. Probable cause means that the police have a reasonable belief that a certain crime has been committed or is about to be committed, and evidence of this crime can be found on your property – land, house, apartment, car, etc. Before they can conduct a search, the police need to get a search warrant from a judge. The police present their evidence to a judge, who will then decide if the evidence is strong enough to issue a search warrant. If the judge allows the warrant, it will specify who, what and where the police are allowed to search.
This is the official process, but what does this mean in real life? Practically speaking, it is difficult for many people to say no to the police, especially if they are unsure about their rights. So it is important to know specifically what your rights are. Here are the top questions people ask me about police searches:
Q: If the police ask to search my car/house, don’t I have to let them?
A: No. If the police do not have a search warrant, you can say no.
Q: The police say they can easily get a search warrant, so why don’t I just say yes and get it over with?
A: The police may in fact be able to get a search warrant, but then again, they may not. It’s unpleasant to have your house and car searched, so you will want to avoid it if you can.
More importantly, when you allow the police to search your property, you are allowing a “consent search” – this means that the police are free to search for anything that might be considered illegal. With a search warrant, the police are limited to looking for what was permitted in the search warrant, but with a consent search, they can look anywhere they like.
Q: What if the police ask to search my purse/briefcase?
A: Your rights are still protected like any other property and you can say no.
Q: I know someone who was stopped for speeding and the police found a bag of pot in his car and arrested him. Wasn’t that a violation of his rights?
A: It depends. If the drugs were in the cup holder or somewhere else easily visible to the police officer, they were considered to be in “plain view” and subject to search and seizure. But if the drugs were locked in the glove compartment and not visible to the police officer, there would not be probable cause to search the vehicle just because the driver was speeding.
Q: If the police do have a search warrant to search my property, what will happen?
A: The police must show you the warrant, which will list what the police are searching for, the place they are searching, the people they are searching, and when the search is to take place. The search warrant must be signed by a judge. With a valid warrant, the police can begin searching for what is outlined in the warrant and will certainly be very thorough. However, they are not supposed to search for things, people or in places that are not mentioned in the warrant. My criminal defense law firm helped represent a man whose room was improperly searched — the warrant was for his housemate, whose room had already been searched and who had already been arrested. The search warrant was not for my client and there was no need to keep searching, so the search was improper.