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He Didn't Have A Warrant!

Jeff Cole
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Partner at Zimmer, Duncan & Cole

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8/12/2010
Jeff Cole
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One of the many things that makes this country great is the protection that the Fourth Amendment gives to every person, to be free from unreasonable searches and seizures by the Government.  What this means, in everyday terms, is that if the police are going to search your house or your person, they have to have a warrant.  A warrant is simply an order from a Judge than authorizes a police officer to perform an arrest, search, or seizure. 

However, there are some exceptions to this rule that are helpful to keep in mind.  First, it’s good to know that the 4th Amendment doesn’t protect you from all searches, but only unreasonable ones.  That’s why, over time, some exceptions have developed.  There are three broad categories of exceptions I’d like to discuss with you today.

The first, and often forgotten exception, is consent.  In other words, if a police officer asks to search your house, and you give him permission, then you have waived your 4th Amendment right, and the officer may proceed.  This is important, because when an officer asks if he can search your home, car, or your person, he isn’t being polite: he’s trying to get your consent.

The second exception is what is known as exigent circumstances.  This exception only applies when an officer is investigating a crime.  The only time it applies is if delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect’s escape.  So, if an officer can actually see a crime being committed inside a residence, he can more than likely enter the residence without a warrant. 

The third exception is called aiding persons in need.  This exception cannot apply if a police officer is investigating a crime.  In general, a police officer has the authority to enter a residence without a warrant when there is a reasonable belief that someone is in need of immediate assistance.  For example, if an officer has reason to believe a person is suffering from a heart-attack inside the house, he may enter the house without a warrant.  Any evidence in plain view of illegal activity the officer sees after entering the house may be used against the individual.

Today, there are two morals of the story.  First, always remember that you are protected by the Fourth Amendment from unreasonable searches and seizures.  Second, although a warrant is almost always required before any search or seizure, there are some exceptions.  The biggest mistake many people make is simply consenting to a search, and waiving their Fourth Amendment right.

To read a very informative South Dakota Supreme Court ruling on these exceptions, click here.

Category: Criminal Defense


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