Do police always need a search warrant?

On Behalf of | Nov 30, 2017 | Criminal Defense

We have all seen the crime drama on TV – where the prosecution has what they think is the golden ticket to prove someone’s guilt, but the defense is able to get the evidence thrown out of court because of an unreasonable search. In real life though, is this possible?

The simple answer is yes – it is possible to have evidence thrown out. However, in order for this to happen, you need to show that the police went against your constitutional right to a lawful search and seizure.  

Protection from illegal searches is a constitutional right

The fourth amendment of the constitution protects you from unreasonable search and seizure. This means – in most cases — a police officer cannot just knock on your door and demand to look inside without a search warrant.  Rather, police need to obtain a search warrant first, showing they have probable cause to search your home.

There are exemptions to this constitutional right

However, the law is not cut and dry when it comes to police needing a search warrant, as there are some situations where a warrant is not necessary.

Here is a look at some of those situations:

  • Consent: If police ask to search your home without a warrant — and you say yes without coercion by the police – then what they find is fair game.
  • Plain view: If police see something illegal in plain view, a search warrant is not necessary. For example, if a police officer pulls you over for speeding near campus, and you left a bag of marijuana out in the open, the officer would not need a search warrant to seize the drugs. 
  • Search tied to an arrest: Police have the right to search in connection to an arrest. For example, if you were patted down during an arrest and the officer could feel a baggie of drugs in your pocket; this can be seized and later used against you.
  • Public safety: If there is an emergency or a case where police reasonably believe that taking the time to obtain a search warrant could jeopardize public safety, they do not need a search warrant.

There are legitimate reasons to have evidence thrown out

While police know and understand the rules regarding search and seizure, mistakes and the overstepping of power does happen. When there is reason to believe that police did not obtain or execute a proper search warrant, your best course of action will be to challenge the findings of the case. A violation of your constitutional rights could lead to suppression of the evidence.

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