Columbus and Delaware, Ohio Criminal Defense Attorney
The following is a guide on what your rights are when a police officer wishes to search your person, vehicle or home, and the circumstances under which a search warrant is required. Although searching the internet is a great place to start, speaking with an experienced criminal defense attorney is best.
Attorney David Johnson of Johnson Legal, LLC is an experienced criminal defense attorney. Consult this FAQ to answer some of your questions. If questions remain, or you need legal representation, contact Johnson Legal, LLC at (614) 987-0192 to schedule a consultation.
Q. What is a search?
A. A search occurs when governmental conduct violates a reasonable expectation of privacy or when the government physically intrudes upon private property to obtain information.
Q. Do the police need a warrant to conduct a search?
A. Generally, the police need a warrant to conduct a search. However, there are a few notable exceptions discussed below.
Q. Can the police search my home?
A. The 4th Amendment to the U.S. Constitution protects against unreasonable searches of a house. This protection extends to the person(s) who have the right to possession of a dwelling, such as the owner of a house or renter of an apartment. Additionally, this protection also extends to the area immediately surrounding the home, known as the “curtilage.” In order to conduct a search of a person’s home, the police generally must have a valid search warrant.
Private property that lies outside the curtilage is not protected by the 4th Amendment. Under the “open fields” doctrine, governmental intrusion on such property is not a search. Even if the land is fenced, shielded from public view, or “no trespassing” signs are present, the owner does not have a reasonable expectation of privacy. Even an examination of your land conducted from the air does not violate a reasonable expectation of privacy and, thus, is not a search.
Q. Can the police search my car?
A. While a home is afforded the most protections in regards to a search, a vehicle is accorded a lesser level of protection. There is a lesser expectation of privacy with regard to a vehicle. Even with this lesser level of protection, the police must have an articulable, reasonable suspicion of a violation in order to stop a vehicle. However, there are some exceptions, notably sobriety checkpoints.
If the police make a lawful stop of your vehicle, the police may search the passenger compartment for weapons if the police believe you are dangerous and may gain control of weapons, but the search is limited to those areas where a weapon may be hidden.
If the police develop probable cause to believe that a vehicle contains contraband (such as smelling marijuana) or evidence of criminal activity, the police may search the vehicle without a warrant. The search may be conducted anywhere in the vehicle, including the trunk, locked areas, and a passengers’ belongings.
Q. Exceptions to the Warrant Requirement
A. There are a few notable exceptions to the requirement of a warrant before a search may be conducted. One such exception is the search incident to a lawful arrest. A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest was unlawful, any search made pursuant to it is invalid.
Police may also conduct a warrantless search of a home, provided there is probable cause and “exigent circumstances.” Exigent circumstances exist when the police have probable cause to believe that a person has committed a felony and they are pursuing him to arrest him. The police may search the home and seize evidence found there.
Another common exception to the warrant requirement is consent. Consent can eliminate the need for probable cause and the need to obtain a warrant, provided the consent is voluntary. It is always a wise decision to never give consent to a search of your home, vehicle or person. This will make it more difficult for your attorney to defend you.