The officer must have probable cause to believe the item is evidence or contraband in order to seize it, though. So, if an officer who has lawfully pulled you over spots what appears to be cocaine on the passenger seat, he can probably examine it, seize it, and arrest you. Coolidge v. New Hampshire , U. Hicks , U. A police officer doesn't need a warrant to conduct a search "incident to" an arrest.
After a lawful arrest, an officer has the right to search the arrestee and the area within the arrestee's immediate control. United States v.
Robinson , U. For more information, read about cellphone searches after arrest and car searches by police. Police may sometimes also make what's known as a " protective sweep " of the premises following an arrest. They can "sweep" if they have reason to suspect that a dangerous accomplice might be hiding in the area in question. Even without that kind of suspicion, they typically may look in spaces immediately next to the area of the arrest that could hold a hidden attacker.
A protective sweep is supposed to be limited to a cursory visual inspection of places where an accomplice might be hiding. For example, police officers can often look under beds and inside closets. If a sweep is lawful, the police can seize contraband or evidence of crime that is in plain view during the sweep. But the sweep must be aimed at protecting the officers, not gathering evidence. As a general rule, the police are authorized to conduct a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence.
Here are some situations in which most judges would uphold a warrantless search:. In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.
Santana , U. Murphy , U. But not all emergency situations are cut and dry. For instance, the Supreme Court held that "hot pursuit" of someone suspected of a minor crime such as a noise violation or misdemeanor won't always justify warrantless entry of a home. Lange v. California, U. A police officer may stop someone he reasonably suspects of criminal activity, and he may frisk the person for weapons if he reasonably suspects the person is armed and dangerous.
This type of warrantless "search" is known as a Terry frisk. If the stop or frisk leads to probable cause for a full-blown arrest, the officer can conduct a search incident to arrest above. Terry v. Ohio , U. If you've been arrested or charged with a crime, or otherwise want to know how the law applies to your situation, consult an experienced criminal defense lawyer. The law can vary somewhat from state to state, and a knowledgeable lawyer can fully explain it to you.
The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service.
Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Over the years, courts have interpreted this to mean that, absent an exception, law enforcement cannot search a person or area without a warrant. If they do, the evidence is not admissible at trial.
Thus, just because law enforcement officers seize evidence does not necessarily mean that evidence can be used against you. When confronted with a motion to suppress , the prosecution must prove by a preponderance of the evidence that that the evidence in question was legally obtained. To do so, the prosecutor will call the law enforcement officers who were involved in the search to explain their actions and their justifications. A defense attorney will then have the ability to cross-examine the officers, exposing inconsistencies in their story or other potential issues surrounding the execution of the warrant.
Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials. Clients from more than 45 U. Skip to main content. New Articles. Shatzkes and Ehiguina L. Presley and Laura C. Samansky and Peter J. Stoffer and Ann E.
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Kamer and Aubrey A. Slack and Peter A. Paolillo and Ellen L. Mitchell and F. Delaney and Kristina M. When issuing a search warrant, the judge may restrict how and when the police conduct the search. In Zurcher v. Stanford Daily , U. The newspaper was not implicated in any criminal activity, but police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers.
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 , U. Howevere, there were two apartments on the third floor. As such, the search of both apartments was considered reasonable. The Supreme Court has also created some exceptions to the warrant requirement.
This is seen in the hot pursuit exception as established in Warden v. Hayden , US. United States , U. Gant, U. Similarly, the Supreme Court has established that searches which are incident to the warranted search do not necessarily violate the Fourth Amendment. In Michigan v. Summers , U. Additionally, when determining whether to apply the exclusionary rule in light of police deviations from warrant restrictions, courts consider whether the actual search was unreasonable.
Normally, law enforcement officers executing a search warrant may not immediately force their way into a residence. Instead, they must first knock and announce their identity and intent. Then, they must wait a reasonable amount of time to allow an occupant to open the door. Only after waiting may the police force entry.
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