In most cases, police officers need a warrant or probable cause to believe that a crime took place to search your property. There are certain exceptions where police can conduct a search without obtaining a warrant or probable cause first.
The most common exception is when you consent to the search. If the police request to search your car, home or anything else and you respond affirmatively, they then have the legal right to conduct the search, confiscate anything illegal that they find, and use it as evidence to arrest and then prosecute you. This is why it’s critical that you never provide the police consent to conduct a search. The best way to respond if the police make this request is to say “I don’t consent to any searches.” Remember that the Fourth Amendment gives you the right to do this.
If you provide your consent and then choose to withdraw it after the police have entered your home but before they’ve found anything illegal, they do need to honor that request, and nothing that they found if they continued their search couldn’t be used against you in court. It’s far better to simply refuse to provide consent, though, to avoid any potential issues.
The police often obtain consent simply because people don’t realize that they have the right to refuse, and because the police aren’t required to tell them that. An officer may also phrase the request in a misleading way, or try to convince you that you that it will be better for you if you consent to a search. For example, if an officer has pulled you over, they may say “You don’t mind if I take a look around your car, right?” This type of phrasing works very well for the officer – if you answer “yes,” they can assume you’re saying that yes, they can look around your car. Answer “no” and they can assume you’re saying that no, you don’t mind them looking around your car. That’s why it’s always better to say that you don’t give consent for searches, as it’s clear and direct.
For consent to be valid, it must be provided by an adult who the police can reasonably believe has the right to provide that consent. If a suspect’s girlfriend answers the door and gives police consent to search the home, the search will be considered legal even if it turns out that the girlfriend doesn’t live there, because it was reasonably for the police to believe that she lived there. On the other hand, if the suspect’s 8-year-old son answers the door and lets the police come in, the search will not be considered legal, because the child obviously doesn’t own the home and isn’t old enough to provide consent.
Another exception to the warrant requirement is the plain view exception. If the officer sees something illegal, even if it’s on private property, they can use this exception to make an arrest. For example, if the police see a bag of drugs in someone’s open garage, they can legally enter the garage, confiscate the drugs and arrest the home owner. However, this exception wouldn’t apply if the officer was trespassing on that person’s property before seeing the illegal activity. If an officer illegally entered a person’s backyard and saw a bag of drugs, they wouldn’t be able to use the plain view exception.
If there are exigent circumstances, then an officer can enter someone’s home without a warrant or consent. Exigent circumstances refer to emergency situations, such as those where there’s the risk of harm to a person or there’s probable cause that evidence could be destroyed. If police respond to reports of domestic violence at a home, they may be able to enter the house without a warrant through an emergency exception, since there’s the possibility that someone will be harmed if they don’t. Or, if the police are pursuing a suspect who runs into a house, they can enter the house without a warrant to arrest the suspect.
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