By Collin County Criminal Defense Lawyer Jeremy Rosenthal
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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should consult an attorney directly.