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When Can the Police Search My House?

When Can the Police Search My House?

The right of privacy is one of the most closely guarded rights in the United States, and nowhere is this right cherished more than in the home. At the time of the colonies, British authorities were empowered by Parliament to make broad, unrestricted searches of private homes and buildings under a device known as a writ of assistance. The colonists deeply resented these searches, which were sometimes conducted for purposes of harassment or retribution. The colonists thus acted in the Bill of Rights to limit the power of government to search its citizens. Under U.S. law, absent limited, exceptional circumstances, the police must secure a warrant in order to search someone’s home. To remove the incentive for police to violate this right, evidence wrongfully gathered without a warrant will be excluded from trial.

Privacy of the Home Under the Fourth Amendment
The first ten amendments to the Constitution are collectively entitled the Bill of Rights and contain limitations on the power of the government. The Fourth Amendment limits government’s power to invade privacy. It reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The amendment creates several requirements for a lawful search. First, the warrant must be based upon probable cause. Whether there was probable cause is often disputed in a criminal case, but the courts have given guidance as to when it is present. Probable cause exists, according to the Supreme Court, when the facts and circumstances would cause a person of reasonable caution to believe that a crime has been or is about to be committed. The officer must provide some reasonable basis for seeking a warrant. If the reason given by the officer is inadequate, the warrant, and the resulting search, are invalid.

The officer must swear before a judge or magistrate to the facts and circumstances supporting the warrant. In addition, the officer must state where the search is to be conducted and what type of evidence the officer seeks in that location. For a house, a street address usually satisfies this requirement. If the site is in an apartment complex, however, the police must give the specific apartment number. A warrant to search one unit does not authorize police to make a wholesale search of the building. Also, police may only seize evidence of the sort provided in the warrant. A warrant does not authorize a police shopping spree in the suspect’s home.

Over the years since the Constitution was drafted, the courts have carved out some exceptions to the warrant requirements. One of these is the “search incident to arrest” exception. Police have the power to search the area within an arrestee’s immediate reach or control. This may include the inside of a car, but is unlikely to include an entire house and garage. Officers also have the right to pursue a fleeing felon into a private home. They must actually be in “hot pursuit” at the time, but if they are, they can follow the suspect into his home, rather than being forced to let him escape. Certain emergency situations, such as being called upon to stop a violent conflict, locate a missing person, or stop gunfire emanating from a dwelling, may also justify a warrantless entry. Courts struggle to define which type of emergency situations qualify for a warrant exception.

There are also circumstances that are not protected by the Fourth Amendment. The amendment only applies where a person has a reasonable expectation of privacy. The bedroom is virtually always such a place. But the protections of the amendment decline in more open settings. If a person was engaging in illegal activity on an open porch or patio, the expectation of privacy is diminished because the individual has exposed his actions to neighbors and passers-by. From this type of scenario comes the concept of “plain view.” Police are not barred from acting pursuant to evidence of criminal activity that is plainly visible. If police came to a house because someone had reported a gunshot, and the responding officer saw drugs on a table, he would not need a warrant to seize the drugs. This is because the officer had to make no real invasion of the suspect’s privacy to locate evidence of a crime.

To help define where a person does or does not expect privacy near his home, the courts have developed the principle of “curtilage.” The curtilage is a zone close to the home in which privacy is expected. Yet its limits are not precise. Courts look at such factors as its proximity to the home, whether it is enclosed, to what use the area is put, steps the homeowner has taken to prevent observation, and other factors linking the area to the privacy of the home. Garbage cans at the end of one’s driveway, which police might search for evidence of drug use or manufacture, would probably be outside the curtilage. The same garbage cans inside a fenced area beside the house would, more likely, be within the curtilage.

Generally, evidence secured in violation of the Fourth Amendment will be excluded from trial. Under a doctrine known as “Fruit of the Poisonous Tree,” a court will exclude all evidence gained as a result of the unlawful search. The initial illegal search is the poisonous tree and the subsequent evidence gained as a results the fruits of that search is also poisoned by its violation of the Fourth Amendment and is inadmissible. Yet there are exceptions here, too, as where concern for an officer’s safety justified additional searching, or where the court concludes the police would have found the evidence even without the illegal search.

The exceptions to the Fourth Amendment generally arise from one of two concerns: the need to protect the lives of police officers, and the need to stop serious criminal activity that police would lose the ability to address if they had to wait for a warrant. Apart from such limited circumstances, the Fourth Amendment serves as a vigilant guardian of the privacy of the home.

The power of the police to seek out and seize evidence of criminal activity is limited within private homes. To enter and conduct a search, the police must have a warrant based on probable cause or permission. A warrant must be secured from a qualified magistrate, or judge, following a sworn statement as to facts from which a reasonable person would conclude criminal activity was afoot. The warrant must be specific as to where the police want to search and what the police are seeking in the search. If any of these requirements are not met, the warrant may be challenged as invalid and the evidence secured as a result may be contested as inadmissible. The Fourth Amendment is the strongest protection a person has against unlawful or excessive police searches of the home.

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