Do the Police Have a Right to Enter and Search a House Without Your Consent?

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

They usually need a warrant to search a house.

As a rule of thumb, the more private an area is to an individual, the more difficult it is for the police to search under the Fourth Amendment to the U.S. Constitution.

A home obviously has the greatest expectation of privacy and is clearly more private than an office or a car or any other place the police may search for drugs, weapons, or even computers.  Police can only search without a warrant in very limited circumstances.

If the police search a home improperly, then the evidence will not be admissible during a trial.  This can mean cases ranging from possession of marijuana, cocaine, methamphetamine or possession of drugs with intent to distribute, all the way up to murder cases, can be severely crippled or even thrown out because of an invalid entry by police into a home.

Police can use an exception called “exigent circumstances” to do warrant-less entries into the home.  Where police have probable cause to believe an offense has been committed and there are “exigent circumstances” they can enter a house without a warrant.

Examples include if they are in “hot pursuit” of a suspect, there is clearly danger to someone inside, or if the officer is in danger.  Another exigent circumstance is if the officer believes evidence is being destroyed inside.  For an officer to claim he fears that there is destruction of evidence, he needs to have strong probable cause of a serious offense.

The main way police search houses without warrants, however, is because the homeowner (or another resident) consents to the search.  The consent must be voluntary and cannot be coerced.  Displays of force or threats to get search warrants can call the search into question.  A person does not have to consent to a voluntary search of a home.

Police use a technique called a “knock and talk” which courts have consistently upheld as being valid.  This is where an officer suspecting drugs or drug trafficking (for example) merely knocks on the door and asks to search.  Where police attempt to manipulate or coerce consent is where there have been legal problems with the searches.

The police won’t tell you it is perfectly legal to tell them to go away the same as if they were trying to sell you cookies at your doorstep… and if you allow them to search voluntarily, you’ve punted a ton of rights away.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice, you should consult an attorney directly.

 

3 Responses to Do the Police Have a Right to Enter and Search a House Without Your Consent?

  1. jcbotero says:

    Just moments ago I wrote a post on my blog for my Journalism course regarding Police Officers and GPS Trackers. The Ninth Circuit did pass the ruling this month that officers could install GPS devices under someone’s car in one’s own property without a warrant, yet some experts think it’s plain wrong. I agree also. Even if the person being tracked is deemed a criminal, it is a violation of their rights.
    What are your thoughts on this?

    • I think it’s troubling but I’m not sure this ruling will stand. In the DC District Appeals Court, it looks like a court ruled oppositely with regards to a GPS device. Also, the Ninth Circuit is widely regarded as the most liberal of the appellate districts yet the main dissenter in the opinion is a staunch conservative. The issue crosses party lines so it’s hard to predict what will happen if the Supreme Court wants to look at the case.

      It’s been long-held precedent that when you’re in public, you really don’t have an expectation of privacy. This means that police can follow you or anyone else for that matter without a warrant on public roadways or in public areas. From that perspective, a GPS device only makes what was already legal for the police to do a lot easier. On the other hand, the real question (in my mind) is the entry onto the private property. In Texas, any evidence that is attained illegally can be suppressed. So if this action by law enforcement was tantamount to trespassing or vandalism, then it’s all being thrown out of court.

      I’ll be following this too!

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