When Can the Police Search Me and My Property Without a Warrant?

Imagine sitting comfortably in your home, enjoying your favorite television show or eating a meal. If someone barged in and started opening your mail, looking through your drawers, and examining your backpack, purse, or briefcase, you’d probably be concerned. But if a police officer comes to your door with a warrant, you may not have much choice in the matter. 

A warrant gives police officers the right to search the area specified in the warrant. There are also exceptions that allow police to search without a warrant. All Americans should know these rules to protect their rights in the event of an unconstitutional search that leads to criminal charges. 

This article outlines what the Fourth Amendment, the U.S. Supreme Court, and California courts say about the warrant requirement and its exceptions. It also explains how a Marin County criminal defense lawyer can help if police violate your rights during a search. 

Quick Background on the Fourth Amendment 

The Fourth Amendment to the U.S. Constitution says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

Simply stated: 

1. Generally, the police cannot come into someone’s home or business without a warrant. 
2. To obtain a warrant, the police must prove that they have “probable cause.” 
3. Any warrant must clearly state the place to be searched and the things to be seized. 

If any one of these three requirements isn’t met, the search is invalid. If a search is flawed, under Supreme Court precedent, it is highly likely that it cannot be used at trial. 

Warrants and Probable Cause: Key Fourth Amendment Requirements  

The Fourth Amendment requires warrants to clearly state the place and persons to be searched. This means that the address must be correct and clearly stated. The warrant must also specifically describe the items at issue. For example, it is improper for the warrant to say something like, “any and all information stored in computers/electronic devices.” Instead, it should use more detailed language, such as “Files, documents, or data stored in the computers or electronic devices, including but not limited to emails, texts, chat logs sent between February 1, 2022, and May 31, 2023, between Aaron Bobson and Bob Aaronson and related to violations of Cal. Penal Code § 530.5 (identity theft).” Without specificity, police could engage in ‘fishing expeditions’ where they could keep looking for evidence of any crime wherever they wanted until they found something. 

Also, all warrants must be supported by probable cause. According to the Supreme Court, probable cause exists when there is a fair probability that evidence of a crime will be found in a particular place. This doesn’t mean it’s guaranteed, just that police have done enough investigation or observation to support their request with solid facts.  

When Police Don’t Need a Warrant: No Reasonable Expectation of Privacy 

The Fourth Amendment only applies to places where a person has a reasonable expectation of privacy. For instance, a reasonable person would expect their text messages not to be seen by anyone without their permission. However, it would be unreasonable for someone to think that a loud conversation on public transit would be private. So, the police would not need a warrant to listen to the train conversation.

When Police Don’t Need a Warrant: Exceptions to the Warrant Requirement

Even where there is a reasonable expectation of privacy and the Fourth Amendment clearly applies, the U.S. Supreme Court long ago realized that police in the field may not always need to seek a warrant. As such, over the years, the Supreme Court has developed several exceptions to the warrant requirement. Here are a few of the most common exceptions: 

• Search Incident to Arrest. In a search incident to arrest, officers can search the arrested person’s body and the area that they can easily reach to destroy evidence or grab a weapon.

• Protective Sweep. This doctrine allows officers to search areas where someone might be hiding during an arrest.

• Plain View. Assume that an officer enters a home with a valid warrant to search for counterfeit money. Once inside, he sees drug paraphernalia. This likely falls under the plain view exception because: (1) the warrant allowed the officer to legally enter the home; (2) the officer could immediately tell that the item was illegal without moving it; and (3) the officer was able to reach the object without moving other objects or entering a new area of the home. 

• The Automobile Exception. The Supreme Court has recognized that people have a reasonable expectation of privacy in their vehicles, but that it is less than in one’s home. Also, vehicles can be easily moved. As such, police can search a car without a warrant when they have probable cause to believe it contains evidence. In California, courts often treat motor homes and other vehicles where people might sleep as dwellings and give them more protection. 

• Consent. This is one of the most important exceptions to the warrant requirement. Many times, when police don’t have quite enough to support probable cause for a warrant, they will ask for permission. This is legal as long as the consent is freely and voluntarily given. (California courts are very strict about ensuring that there is no coercion.) However, consent has important limitations, such as the fact that roommates can consent to a search of a common area, but not the other roommate’s private spaces.  

• Probationer/Parolee Searches. The Supreme Court has said that people on probation or parole have fewer rights than others. As such, people on parole can be searched without cause or a warrant. However, in California, probationers cannot be forced to submit to random searches unless it is a condition of their probation. 

Get Legal Help When Police Search Without a Warrant or Valid Exception

The police have a job to do. But part of their job is to protect citizens’ rights by following the U.S. Constitution and all relevant California laws. If you believe that the police violated your rights during a search, contact Brownstein Law Group. Our team has years of experience helping clients exclude illegal evidence. If you believe that the police broke the law during a search of you or your property, call us at 415-795-9059 or use our online form to schedule a consultation.