For those who follow my blog, you may get the sense that I am less than enthusiastic about the status of our rights in the United States today. Many of the laws and principles that secured our rights in the past have been eroded away by exceptions to laws that are designed to protect those rights. Automobile exceptions to the warrant requirement are an excellent example of the erosion of our right to be free from warrantless and unreasonable searches and seizures in our automobiles. We can thank the war on drugs for that.
I am not so jaded though when it comes to the status of our rights to be free from unwarranted and unreasonable searches and seizures in our homes. Although there have been some exceptions made to the warrant requirement for home searches, the rights in your home have not been nearly so decimated as our fourth amendment rights have been in other contexts.
“Every man’s home is his castle.” The United States Supreme Court has been clear that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” To this day, an officer may only enter your home under the following circumstances:
1. The officer has a search warrant to search the house.
2. The officer has an arrest warrant to arrest a suspect inside the home.
3. The officer has obtained the consent of the home owner to enter and/or search the home.
4. The officer has probable cause to believe that there are exigent circumstances that merit entering the home without a warrant.
Since we already know that an officer can search the home if he has a search or arrest warrant, we will move on to discuss the remaining circumstances where a police officer can enter and/or search a home without a warrant.
A police officer can enter and/or search a home if the home owner consents to the entry into the home. The consent must be a knowing and voluntary consent. Also if there are multiple lawful residents, and one resident refuses to allow the police into the home, then the police must not enter the home under the consent exception to the warrant requirement even if the other resident consents to the entry and search of the home. No lawful resident is obligated to consent to the officer’s entry or search of the home.
A police officer may enter a home when exigent circumstances exist that compel his entry into the home. Some examples of exigent circumstances are, hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent the suspect’s escape, and risk of harm to police or others inside or outside the dwelling. One can see how slippery of a slope ‘exigent circumstances’ can be. Anytime a police officer enters a home without a warrant and without the home owner’s consent, the prosecuting attorney will try to jam the warrantless entry into the exigent circumstances exception to avoid suppression of the evidence secured as a result of the illegal entry.
The biggest danger facing our rights against warrantless entry and searches of our homes is a liberal interpretation of the ‘exigent circumstances’ exception to the warrant requirement. So far it seems that the courts are getting this right for the most part. We can only hope this right does not get eroded in the same way our other rights have been eroded.
I have not discussed when a police officer may search on your property, but outside the four walls of your home, that’s a discussion for another blog.
If you believe you have had your home illegally searched by a police officer, or if an officer is asking for your consent to search your house, please call our office today for assistance. 208-571-0627
Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.
Ask Craig to review your case.