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Do the Police Always Need a Warrant to Conduct a Search?

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What is a Search Warrant?

A search warrant is a warrant issued by a competent authority, such as a judge or magistrate, which authorizes law enforcement officers to search a specified place for evidence of a crime, even without the occupant’s consent.  Generally, a search warrant is always required under the Fourth Amendment, subject to a few specified exceptions.  For example, in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held that searches conducted outside the judicial process—without prior approval and a valid search warrant—are prohibited under the Fourth Amendment, with a few detailed exceptions which are described below.  

Fourth Amendment, Generally:

The Fourth Amendment of the United States Constitution restricts the government from authorizing unreasonable searches and seizures. Specifically, the Fourth Amendment reads:

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.”

In Colorado, a search warrant is typically issued by a court and allows police, or some other law enforcement agency, to conduct a search of a specified area. This often include your home, vehicle, business offices, or other location.  The search warrant allows law enforcement to search for evidence of criminal activity and confiscate any evidence they may find.

Under the U.S. Constitution, searches and seizures inside the home without a warrant are presumptively unreasonable.  This is because an individual’s home is considered a sacred space and is afforded great protection under the law.  Thus, a search of a home without a warrant will likely be excluded under the exclusionary rule detailed below. 

How do the police obtain a search warrant?

Generally, only judges and magistrates may issue search warrants.  In Coolidge v. Hampshire, 403 U.S. 443 (1971), the Supreme Court held that a warrant must be issued by a “neutral and detached” judge capable of determining whether probable cause exists.  To obtain a warrant, law enforcement officers must show that there is probable cause to believe a search is justified.  Officers must support this showing with sworn statements such as affidavits, and must describe in particularity the place they will search, and the items they intend on seizing.  The police may also present sworn statements, witness statements, statements from police informants, or other evidence to establish probable cause.  In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court held that a warrant that lacks accurate information as to what will be searched is improper, and that a search which happens pursuant to that warrant is unlawful and violates the Fourth Amendment.  Furthermore, searching other unrelated areas not specified in the search warrant may constitute an unlawful search.

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court held that when deciding whether to issue the warrant, a judge must consider the totality of the circumstances.  For example, if law enforcement officers used a confidential informant as their basis to establish probable cause, the information must include the informant’s veracity, reliability, and basis of knowledge.

In sum, law enforcement officers must get a valid search warrant before they can execute a search of your property without your explicit consent. This means the law enforcement officers must go to a judge for a search warrant which authorizes the search. In doing so, the law enforcement officers must convince the judge that they have probable cause to believe that there is evidence of criminal activity at the location they intend to search.

Reasonableness Requirement:

When determining whether the actual search violates the Fourth Amendment, courts will use a reasonableness test.  Warrantless police conduct may comply with the Fourth Amendment, provided that the conduct is reasonable under the circumstances.  In Maryland v. Garrison, 480 U.S. 79 (1987), the warrant indicated that “the third-floor apartment” was to be searched.  However, there were two apartments on the third floor.  Thus, the search of both apartments was considered reasonable.

Can the police search my property without a search warrant?

Law enforcement officers may only conduct a warrantless search if the search falls within one of the exceptions to the warrant requirement.  These exceptions include:

  • Consent to search;
  • Automobile exception;
  • Searches incident to a lawful arrest;
  • Terry stop and frisk search;
  • Exigent circumstances;
  • Hot pursuit;
  • Plain view;
  • Special needs doctrine.

The easiest way for law enforcement officers to search your property without a warrant is with consent.  If law enforcement officers ask whether they can search property and the owner or resident allows them inside, they likely do not need a warrant.  It is important to remember that by letting the police search your property, they may be able to use any evidence of criminal activity which is found pursuant to the consent search against you in court.  If you have consented to a search which led to law enforcement officers finding evidence of illegal activity, reach out to one of our criminal defense attorneys for a consultation. 

One of the most common warrantless searches are vehicle searches under the automobile exception.  

The automobile exception is an exception to the Fourth Amendment’s general rule requiring law enforcement officers to obtain a search warrant in order to search a person’s property.  Under this exception, a person’s vehicle may be searched without a warrant when suspected contraband is readily mobile and it is not reasonable to take the time to obtain a warrant as the contraband could be disposed of.   This exception allows law enforcement to search a motor vehicle if the officer has probable cause to believe the vehicle contains contraband.  But, this does not entirely override the Fourth Amendment.  In most cases, a law enforcement officer can only search a motor vehicle pursuant to the automobile exception if the driver was pulled over for a lawful traffic stop.  Law enforcement cannot merely pull over vehicles for no apparent reason other than a hunch that they can later develop probable cause to search the vehicle. 

Even with probable cause and application of the automobile exception, law enforcement may only look in parts of the vehicle or containers therein where suspected contraband may reasonably be located.  Granted, when law enforcement suspects there are drugs in the vehicle, law enforcement could look in any part of the vehicle or container inside the vehicle, including luggage.  On the other hand, if law enforcement is looking for a sex-trafficking victim, law enforcement would not be allowed to search a purse or small bag where a body could not be concealed.  Instead, they would only be able to look in places that could reasonably contain a sex trafficking victim.  

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.

A Terry stop is another name for stop and frisk; the name was generated from the U.S Supreme Court case Terry v. Ohio.  When a police officer has a reasonable suspicion that an individual is armed, engaged, or about to be engaged, in criminal conduct, the officer may briefly stop and detain an individual for a pat-down search of outer clothing.  A Terry stop is a seizure within the meaning of Fourth Amendment.

In a traffic stop setting, the Terry condition of a lawful investigatory stop is met whenever it is lawful for the police to detain an automobile and its occupants pending inquiry into a vehicular violation.  The police do not need to believe that any occupant of the vehicle is involved in criminal activity.

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.

The special needs doctrine is an exception to the Fourth Amendment that allows for searches at international borders of the United States, national security searches, school searches, searches of prisoners, parolees, or probationers, or workplace searches.  If you have been subject to a special needs doctrine search, please contact one of our criminal defense attorneys for a consultation.  These searches are extremely fact intensive and our criminal defense attorneys are well-equipped to thoroughly investigate your case to establish if a constitutional right has been violated.

What happens if the police searched my property without a warrant?

If the police search your property without a warrant and without one of the exceptions noted above, you should contact a criminal defense attorney as they may be violating your constitutional rights.  If you are arrested based on evidence found as the result of an illegal search, your criminal defense 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 use at 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 United States Supreme Court has reasoned that the first illegal search tainted the evidence obtained in the later search, even if police later used a warrant.

If you have been subject to a warrantless search and believe your constitutional rights have been violated, please reach out to our experienced criminal defense attorneys for a consultation. 


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