Having a stranger go through your stuff—even if he’s got a badge and a gun—is weird, invasive, and embarrassing. It just feels plain wrong an officer can do that without a judge’s approval.
Believe it or not, the Constitution agrees, to a certain extent. The Fourth Amendment protects our sacred right to personal security, free from government intrusion, by forbidding most police searches without a warrant. But there are exceptions when police can search without a warrant.
Warrantless Search Law Is Important—And Complex
Before I list the exceptions, understand this: this is just a basic description of justified warrantless searches. The law here is really complicated. What is allowed depends on the facts of each case—plus, there are lots of exceptions to these exceptions that can make a warrantless search unconstitutional, making evidence inadmissible.
Here’s what you need to know—if you’re charged with a crime based on a search without a warrant or even with a warrant, you need a skilled criminal defense attorney to closely analyze the search with a trained eye. Here’s why: if your lawyer can show the search is unconstitutional or invalid, the judge will throw out the evidence, which could mean a dismissal or reduction in charges you can live with.
When Police Can Search Without a Warrant
Here are the basic situations where police can search without a warrant. Again, just because you think your case falls within one of these exceptions doesn’t mean it actually does, and even if so, it doesn’t mean the police did it right. You need an experienced criminal defense lawyer to get the facts and research your case to hold the police to the proper standard.
- “Stop and frisk.” Police can briefly stop you and search you for weapons if they believe you are unlawfully armed and dangerous. This includes searching you at a traffic stop.
- The “automobile exception.” Police can search your vehicle if they have probable cause it contains evidence of a crime. This can include any part of the car or any container within it, as long as those items might conceal the specific criminal evidence officers think the car contains.
- Vehicle search when you get arrested at a traffic stop. These searches are limited to the area where you could reach at the time of the search, unless police reasonably believe your vehicle contains criminal evidence related to your arrest.
- Search after arrest. The police can fully search you after arrest, assuming the arrest is lawful. They can even search you right before arrest—but arrest must quickly follow the search.
- “Exigent circumstances.” This means an emergency justifying entry into a home or building. It can occur when officers have probable cause to believe criminal evidence is present, and reasonably believe it may be destroyed or removed before they can get a warrant. They can also go in to prevent a suspect from fleeing or when there’s a risk of danger to police or others inside or outside the home. This is called a “protective sweep.”
- Plain view. Police can search or seize evidence that’s obviously incriminating as long as officers had a legal right to be where they saw it.
- Plain feel. When police do a lawful pat-down and touch an object that’s obviously incriminating, they can get it. The classic example is a pat-down where an officer detects a gun hidden in a jacket pocket.
- Anonymous tips. Simply put, the law doesn't like them. To justify a warrantless search based on these, the police have to meet strict requirements showing they were entitled to trust the tipster.
- Hot pursuit. While chasing a fleeing suspect, police can go in any building the suspect does.
- Abandonment. If a suspect drops evidence in a public place, it’s deemed abandoned. This can happen during a police foot chase where officers see a suspect throw out a crack rock, which is then found by a chasing officer.
- Inventory search. When property is impounded—like when police take your car after your arrest—officers can search it without a warrant, as long as they follow standard procedure.
Last but not least, the all-time favorite: consent. Your consent renders any search reasonable, even if it’s otherwise unconstitutional, as long as you agree to the search freely and voluntarily. Still, the validity of these searches can be scrutinized. There have been occasions where cases have been thrown out for invalid consent.
This Is No Job for an Amateur
If your case is based on a warrantless search, you’re an amateur at sifting through all the facts and fine points of the law in developing what might be a winning defense for you. It’s time to invest in a professional who can guide you to the best outcome in your case.
If you have any more questions about searches, feel free to start an email or live chat with us. You can call us at (888) 230-1841 to schedule a free, no-obligation meeting to start strategizing a defense with one of our experienced criminal defense attorneys.