You’re probably familiar with arrest warrants and search warrants. In the case of an arrest or a search and seizure, there are circumstances where law enforcement can make a lawful arrest or search a person, their home, or their vehicle without a warrant. The question is, when is a warrantless search and seizure legal?
As a general rule, the police are not supposed to go around conducting warrantless search and seizures, as these are usually considered “unreasonable” under the law. In order for a governmental agency to conduct a warrantless search and seizure, it must be well within a firmly established exception to the warrant requirement.
What are the exceptions to a warrant?
- An authorizing party; for example, the owner of a vehicle or a home, gives their voluntary consent. This can be particularly concerning for juveniles when a parent or grandparent says to the police, “Go ahead, you’re free to search their bedroom.” Please note that law enforcement personnel are not required to tell the parent, grandparent or legal guardian that they have the right to say “no” to the search. So, this can put the family at a disadvantage.
- If an officer sees something, such as an open container of alcohol, drugs, or suspected stolen property in “plain view,” and the officer is lawfully in a place he or she is allowed to be, the officer can perform a warrantless search and seizure.
- If a suspect is under custodial arrest, he or she may be searched. Does the charge matter? For example, can the police search a man after arresting him for having an active warrant for failure to appear? No, it is irrelevant. All that matters, is that the individual was arrested and taken into custody.
- If there are urgent, otherwise known as exigent circumstances, then the police can perform a warrantless search. For example, if the police are pursuing a suspect on foot, they can search a residence without a warrant or the homeowner’s permission. Same goes for a house that has people in it that may be in danger – the police can break down the door to remove these individuals from harm’s way.
- The police can conduct a vehicle search when the suspect (arrestee) is unsecured, and when he or she can reach the passenger compartment of the vehicle while the search is being conducted, and when the officers have reason to believe there is evidence connected to the arrest in the suspect’s vehicle.
Do you believe you were the victim of a warrantless search and seizure? To discuss your case for free, contact our firm to meet with an East Bay criminal defense attorney!