When The Police Can Search You: Part Four

May 29 2016

This is the fourth part of a multipart blog post about search and seizure law. I previously discussed legal issues surrounding street encounters with the police under the federal and New York constitutions and circumstances surrounding searches of a car. Here, I intend to discuss searches of a person’s actual home.

Ever since the landmark 1967 case of Katz v. United States which held that the 4th Amendment prevents the police from searching anywhere where there is an “expectation of privacy,” courts throughout the country have systematically limited the scope of 4th Amendment protections. In other words, courts have given police officers more and more opportunities to search without needing a warrant. The one area where courts appear reluctant to allow the police free rein in conducting a warrantless search is in a person’s actual home. So if the police are going to search someone’s home, they are probably going to need a search warrant. But in what circumstances can the police search without a warrant?

First, as a threshold matter, when is a person’s home their home. Does a person who is staying in a hotel room have the same protections in the room that they do in their house? What about an apartment resident? What about a guest in someone else’s house? These questions all center around whether these occupants have what lawyers call “standing.” A person has standing whenever they are legally permitted to use the 4th Amendment to protect themselves from a warrantless search. In short, if you have standing and the police searched you illegally, the evidence will be suppressed. If you don’t have standing, then the evidence will not be suppressed irrespective of whether the search seems illegal or not. For example, if the police find cocaine that they say is yours in your friend’s book bag that is in the back seat of your friend’s car and you are a passenger in that car, you do not have standing to challenge the search of your friend’s bag. Why? Because it’s not your bag so the police search didn’t violate your rights even though they are saying illegal contraband found in it belongs to you. The question of standing is fairly complicated and might be the subject of a future blog post. But for the purposes of this post, a person has standing to challenge the search of a location whenever he or she is an overnight guest at that location. So if you are just visiting a friend at his house for a few minutes and the police storm the door and arrest you and recover the illegal machine guns in the room where you are visiting, you don’t have standing. But if you are spending the night there, you have standing to challenge t search of your room. The same principles apply with hotels (are you spending the night there? Yes? You can challenge the search).

So assuming you have standing and the police come in and search your apartment without a warrant, can you suppress the evidence? It depends. Generally, the law really wants cops to get search warrants in these situations. However, it is not necessary for them to do so if you give them consent or if there is an “exigent circumstance.” Although this is pretty clear, it may require repeating- if you consent, they don’t need a warrant. With regard to exigent circumstance though, the term basically means emergencies. So if the police believe that evidence is about to be destroyed, that they are in hot pursuit of a felon, that the person may escape, or that its a matter of life and death for someone, then the police do not need to get a warrant. The issue as to whether the police’s belief was legitimate is litigated in a pre-trial hearing.

The police may also conduct a limited sweep of a home in conjunction with the arrest of a person pursuant to an arrest warrant to make sure there is no one that can jump out and attack them while effectuating that arrest. This is called a “protective sweep.” The police are permitted to search in any adjoining area where a person who can ambush them may be hiding. But they are not to conduct a full search of the premises under these circumstances.

Although there are other limited examples, most permissible warrantless searches of a person’s home fall into one of the categories mentioned above. If you, or a loved, finds yourself in a situation where the police conducted any kind of search, contact an experienced New York city criminal defense lawyer immediately.

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