The Fourth Amendment guarantees citizens protection from unreasonable searches. However, your rights may not be a strong as you would like to believe. There are some instances when police can conduct a search without a warrant. You need to be aware of these exceptions and know what to do. Here are some circumstances that you may need to prepare for.
Consent is Given
A police officer can always conduct a search if they have consent. Under Schneckloth v. Bustamonte the Supreme Court ruled that a search is valid even if the suspect wasn’t aware that they had a right to refuse. However, every Delaware criminal defense attorney warns that there are some limits that you should be aware of as well:
- You limited the scope of consent.
- You were coerced into giving consent.
- Consent was given by a party that didn’t have the right to do so (such as a girlfriend that wasn’t a legal resident at the property).
It is always a good idea to refuse consent to search. A police officer may ascertain their right to search anyways and it would be a good idea to allow them to proceed. However, it is a good idea to notify them that you do not consent and intend to contest the search later.
Probable Cause
Probably cause is also an exception to the Fourth Amendment. Here are some instances where an officer may have probable cause.
Evidence in Plain Sight
An officer can conduct a search if they see evidence in plain view. There are a couple of rules that need to apply:
- The officer needs to be legally in a place where they can see the evidence in question.
- The illegality of the evidence needs to be clear (i.e. some form of contraband or obvious evidence of a crime).
You should always be aware that any evidence in plain sight can be used against you and gives the officer the right to conduct a search.
Smell of Contraband
Most people understand that evidence in plain sight is clearly admissible and gives an officer legal grounds to search. However, most people don’t realize that the smell of contraband can also be used against them.
In Kentucky v. King and several other cases, the Supreme Court has upheld that the smell of marijuana or other contraband may give police the right to search. However, other rulings such as Robey v. the Superior Court of Santa Barbara have disputed this finding. The smell of contraband appears to be a legal gray area and may vary by jurisdiction. Therefore, it is a good idea to assume that a police officer may be able to search your property if they claim to small contraband.
Imminent Danger or Arrest
Police can search your property if they have reason to believe that someone is in imminent danger. They can also conduct limited searches while executing an arrest. For example, if they enter your property to execute an arrest warrant then they can sweep the house to see if anyone else is around that could compromise their safety.
Imminent Fear of Destruction of Evidence
Police can search your house if they have reason to believe that you are in the process of destroying evidence. Under Kentucky v. King police even broke into the wrong house, but found a different suspect destroying evidence. The Supreme Court upheld that the evidence seized was admissible even though the police didn’t have a warrant, because the suspect was destroying evidence to conceal a crime.
