Getting arrested at home makes it feel like you have no rights at all.

But you do.

Our Constitution protects our freedom from the government running all over us, and that includes police ransacking your house just because you got arrested. But we’re talking fine points of the law here. This blog doesn’t cover the police right to search the area near you at arrest. As similar as that sounds, it’s legally different.

Usually, home searches require a warrant, which must explicitly justify the reason for the search. But here’s the basics on police searching your home without a warrant if you get arrested there.

What It’s Called and How It Works

The legal term is “protective sweep.” It’s strictly limited in purpose and scope. Read the definition carefully: a quick and limited search at arrest, to protect the safety of police officers or others, limited to those places where a person might hide.

Let’s break it down a little more:

  • Legal justification for protective sweep. Officers must prove they justifiably believed someone posing a threat hid in the areas they searched. This is called reasonable suspicion, which is more than a guess but requires highly technical legal knowledge to defeat.
  • Location limits. The police can look only where a person can hide. That means if you get arrested in your bedroom, they can’t search your bathroom medicine cabinet under the guise of a protective sweep. However, if you’re arrested outside, they might search inside, if police have reasonable suspicion a dangerous person lurks inside. Remember that doesn’t mean someone’s actually there, just that officers are legally justified in believing it.

Next, let’s look at why it’s important to hire a sharp lawyer to make sure police didn’t exceed the limits of these searches.

Judges Enforce Limits by Throwing Out Evidence From Home Searches

When police take a protective sweep too far, judges can throw out evidence. This can get your case dismissed—even if you got caught red-handed. Or it might end in a plea deal that’s too good to turn down.

A great example is a 2009 South Carolina federal case called United States v. McCants. In that case, a judge effectively dismissed federal weapons charges because police couldn’t justify searching McCants’ mobile home when they arrested him.

Importantly, McCants got arrested outside. Police found the weapons inside during a protective sweep right after arresting him. To justify the sweep, officers claimed reasonable suspicion a threatening person remained in the home because:

  • They heard a lot of noise inside before McCants came outside for arrest.
  • The windows were covered in black tape, so they couldn’t see inside it.
  • McCants refused to answer whether anyone else was inside the home.

The judge rejected the argument. With the help of McCants’ skilled attorney, the judge saw officers gave no reason why they believed anyone besides McCants made the noise, or why they thought someone else was inside.

The judge wisely concluded validating this protective sweep would allow all protective sweeps when police are simply unsure if there is someone else in the home. As the judge pointed out, that would rubber stamp these searches in “virtually all cases.” Doing that would just let police walk in any old time they arrested someone outside their home. Luckily, our forefathers didn’t like that idea very much.

Don’t Let Police Just Have Their Way

You have rights and hope, even if it doesn’t feel like it. But you can’t give up or sit on your hands and just hope for the best.

The law is really complex and the government has good arguments—and a lawyer to make them. That’s why you’ll need a skilled criminal defense attorney to protect your right to get evidence from an illegal search thrown out. The stakes couldn’t be higher: getting that bad evidence rejected could mean the difference between prison and dismissal.

If you’re wondering about a police search or if you’re just frightened over your charges, call us at (888) 230-1841 or start a live chat right where you are. You can get your questions answered by an experienced criminal defense lawyer or set up a free strategy session where we can talk about how to protect you.


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.
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