In most cases, the police cannot search your home, car, or other private property without a valid search warrant. The Constitution of the United States protects individuals from unreasonable search and seizure. If the police violate your rights with an illegal search, they may be prohibited from using the ill-gotten evidence against you. However, there are exceptions to the search warrant requirement.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is a search warrant?
- 2. How do the police get a search warrant?
- 3. Can the police search my property without a search warrant?
- 4. What happens if the police searched my property without a warrant?
A search warrant is an order issued by the court to allow police, sheriff's officers, or other law enforcement to conduct a search of a designated area. This may include your home, vehicle, business offices, or other location. The search warrant allows law enforcement to search for evidence of criminal activity and confiscate the evidence they find.
Under the U.S. Constitution, searches and seizures inside the home without a warrant are presumptively unreasonable.1
Law enforcement officers have to get a valid search warrant before they can execute a search of your property without your consent. This means going to a judge for an order to authorize the search. The police have to convince the judge that they have "probable cause" to believe that there is evidence of criminal activity at the location to be searched.
The police may present before the judge sworn statements, witness statements, statements from police informants, or other evidence. Search warrants generally have to specify the location they are searching, and the specific type of evidence they are looking for. Law enforcement searches may be limited to the areas specified in the warrant. Searching other, unrelated areas may constitute an unlawful search.
The police can only search your property if the search falls within one of the exceptions to unreasonable search and seizure. Some of these exceptions include:
- Consent to search
- Searches incident to a lawful arrest
- Exigent circumstances
- Hot pursuit
- Plain view
The simplest way for the police to search your property without a warrant is with consent. If the police ask whether they can search the property and the owner or resident allows them inside, they may not need a warrant. In some cases, the police may ask to search but imply the resident doesn't have a choice. By letting the police search your property, they may be able to use any evidence of criminal activity against you.
When police arrest a person based on probable cause that they are involved in criminal activity, they may search the immediate area as part of a search incident to a lawful arrest. However, these searches are limited to the area within the suspect's immediate control. If the police have an arrest warrant for a person in your home, they may be able to come in and arrest the person, but if you do not consent to a search of the house, they may only be able to search the area immediately around the person who is being arrested.
The exceptions of exigent circumstances or hot pursuit only allow for warrantless searches in certain emergency situations. If the police are in pursuit of a fleeing suspect, they may be able to enter public property without a warrant. Similarly, if the police had a reasonable belief to believe that entry of property was necessary to prevent physical harm to another person or destruction of evidence, their warrantless entry may meet one of the exceptions to the rule.
The police may not need a warrant to seize evidence of criminal activity that is in plain view. For example, if the police pull you over for a traffic violation and see drug contraband in your back seat, they may arrest you for possession of drugs or drug contraband, and search the vehicle for other evidence of drug crimes.
If the police search your property without a warrant and without one of the exceptions noted above, they may be violating your constitutional rights. If you are arrested based on evidence found as the result of an illegal search, your attorney may be able to prevent that evidence from being used against you in court. This is generally done through a motion to suppress evidence.
Under the Exclusionary Rule, evidence that was gathered through an unreasonable search may be excluded from trial. Even if the evidence shows the defendant was involved in an unlawful or criminal activity, suppression of the evidence means it cannot be shown to the jury at trial. If the evidence is all the prosecutor has, suppressing the evidence may mean they have no case against you, and your charges may be dropped.
If an unlawful search turns up evidence of illegal activity, and the police use that evidence to obtain a search warrant, evidence of the latter search may also be excluded. This is known as the Fruit of the Poisonous Tree doctrine. The Supreme Court has reasoned that the first illegal search tainted the evidence obtained in the later search, even if police later used a warrant.
Call us for help...
If you have any questions about search warrants or unlawful searches by police officers, please contact us at Colorado Legal Defense Group. Our caring Colorado criminal defense lawyers have years of experience protecting clients accused of all types of misdemeanor and felony criminal offenses. Fighting a Colorado arrest can be a frightening experience. But you don't have to go it alone. Contact us for a free consultation.
Also see our article on Nevada search warrants.
- Payton v. New York, 445 U.S. 573 (1980)