In general, police officers do not have the right to conduct an unreasonable search of your premises or place of business under the fourth amendment of the U.S. Constitution. Other than a handful of exceptions, warrantless searches and seizures of property are unreasonable and illegal. As such, evidence obtained pursuant to an illegal search and seizure is not admissible in a criminal court. This article will give you a basic understanding of how search warrants work and what to do if you are confronted by a search warrant for your property or business.
Probable cause required before police can obtain search warrantsBefore an investigator can get a search warrant from a criminal court judge, they must swear that facts provided are true and that they demonstrate "probable cause" to conduct a search of a private citizen’s home or place and seize items found there. The police must have more than “a hunch” to establish probable cause – a truthful affidavit must be provided for a warrant. It must establish that the evidence based on the presented facts that would lead a reasonable person to believe that evidence of a crime will likely be found at the premises. In addition, the police officer needs to detail to the judge where he or she will be searching for evidence and what kind of evidence they will be searching for and seizing if found. Once issued, the warrant only authorizes the police to search in those particular places and only for those particular items listed on the warrant to be seized. Other items may be seized only if clearly incidental and in plain view of a properly conducted and legal search.
What to do if a police officer is at the front door with a search warrant?
1. Examine the warrantYou have the right to see and examine the warrant before the police are permitted to legally enter your residence to perform a search and seizure. You will want to make sure that the warrant is for your residence and that the address is correct.
It will list the places that are to be searched and what can be seized. There may be a day time limit of when the search can be performed. Look the warrant over and check the date, address and judge’s signature. If you see any mistakes on the warrant you should inform the police officer.
Whether at home or at work, you should politely ask to see the warrant and inspect it to make sure that it is for your premises and determine the scope of the search. If it appears to be in order, you should allow the officer to enter and search the premises. Be polite at all times and do not argue. Even if you think your rights are being violated you should never disallow the search unless they do not have a search warrant to show you. It is permissible to take notes of the search and, if it appears the police are violating your rights, you may politely make exception keeping in mind that any violation will result in the search being potentially declared illegal and evidence obtain inadmissible in a court of law.
2. State that you do not consent to the searchClearly tell the officer that you do not consent to the search. This will limit them to only search for what is on the warrant. Having witnesses to your statement can prove to be beneficial later.
3. Do not resist the warrantYou can be arrested when resisting a search warrant. You should also not try to leave the premises while the search is being conducted as a valid search warrant gives the police the right to detain you and anyone else on the property during the search.
4. Assert your Fifth Amendment rightsYou have the right to remain silent and do not have to answer any questions. Whatever you say can be used against you later. Simply tell the officer you do not wish to answer questions without the presence of your lawyer. Making this statement requires the officer to ask no further questions of you other than your name and address.
5. It is a good idea to take notes.If the police will allow you to watch the search, take notes. Write down the names and badge numbers of the officers. Record where you see them search and what they seize. If you see them going beyond what is on the search warrant, you can speak up and point that out to them. You should write it down in your notes if you do.
6. Request an inventory of what the police seizeYou have the right to ask the police to provide you with an inventory of what was seized. If the inventory list they give you is incomplete or inaccurate, do not sign it.
7. Call your lawyerCall your lawyer as soon as you can and let him or her know about the search and seizure if any.
Computer Search and SeizureThe police can get a search warrant on your personal and business computers. They are allowed to seize a computer if it was used to commit a crime or was stolen. The police can also seize your computer if they believe it contains information about another person they are investigating. However, when investigating someone else they may only:
- Perform a search on it and print hard copies of certain files
- Make electronic copies of certain files on the computer
- Make “imaging” or a bitstream copy of your computer’s hard drive to search later.
Warrantless SearchesThe police can perform searches without an official search warrant if you give them consent. These are called warrantless searches. If you have roommates or a house guest, they can also give the police permission to a warrantless search of your home on your behalf if you are not there. Also, a coworker can give permission on your behalf for your work space to be searched if the police ask. You have the right to ask the people you share a home with or work with to not give permission on your behalf to a warrantless search of your home or workspace.
If the police ever come to your home requesting permission to enter without a warrant, simply go outside and close and tell them you do not consent. Close the door so that you remove any misunderstandings that you are given consent by leaving the door open. This also is true if you are ever asked by the police to be allowed to search your car or trunk of your car. You do not have to give permission. However, if a crime was committed or the police see something illegal in your car they have the right to look in it.
Call a Lawyer to Represent You If ArrestedIt is almost always best to call a criminal defense lawyer to represent you if you have been subject to a search or an arrest. A criminal defense lawyer is an expert who can identify crucial evidence in a timely manner that could lead to your winning your defense case for reasons such as improper police procedures. In addition, a lawyer can negotiate more effectively on your behalf and is not in the same difficult emotional state as you might be after an arrest. What a lawyer says when talking to police generally may not be held against you in a court of law, as opposed to your own statements that can be used. If you cannot afford a lawyer, you should request one after an arrest.[/h3]
- Criminal Law & Procedure:
Police Activity How to Handle a Police Search of Your Home
By Michael Wechsler |
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