Police Raids v. Your Rights

I was wondering can the police legally raid a residence without a warrant? If the police knock and demand entry, don’t you have the Constitutional right to deny their request without a warrant?

Also, suppose you let them in (unaware of these rights) without a warrant. Can they now seize “evidence” without a warrant, or have you waived your rights at this point?

Lastly, my wife argues that the police can search a home as easily as a car. I say that car searches are different and come from relatively recent court rulings where a policeman only needs to suspect something. (Oh, darn! What’s the legal term for this? …not reasonable doubt, but it’s a phrase like this. Oh, shoot!) Oh! “Just cause”, I think!
(If a cop has “just cause” is a very biased decision, you know.)

The car issue may vary state to state, but tell me what your understanding is.

Anyway, what’s the deal?

  • Jinx

IANAL

Probable Cause is the term you are trying to remember. LEO’s must show probable cause to obtain a warrant from a judge in the U.S. Without a warrant, an unauthorized search of one’s home is generally considered unlawful unless the police have a strong suspicion that evidence is imminent danger of being destroyed. Searches of automobiles is somewhat less restricted. If an officer has probable cause (smell of drugs or alcohol or apparent inebriated state of driver) a warrant is generally not required to effect such a search.

IANAL…

With that out of the way my understanding of this is that no, the police cannot search your house even if invited in. I have no idea how to research legal cases but I seem to recall one that illustrates the point.

Some college students were walking back into their dorm with some beer (or other liquor). A policeman saw this and stopped them demanding ID for proof of age. The student didn’t have an ID on him but said it was in his dorm room and invited the officer to follow him. Once in the room the policeman noticed a marijuana plant in the room and proceeded to arrest the student (or both students [roommates]…I’m not certain). Anyway, the case was thrown out of court on the premise that the police officer didn’t have a warrant or reasonable cause to be there.

In a similar case I believe there was one where a police officer parked in his car noticed some people smoking a bong in a house across the street and proceeded to bust the residents. Again, this was thrown out of court (there could have been tobacco in the bong he saw afterall). (FYI: I am less certain about this case and if it was real)

I believe the thinking behind this sort of thing is that we don’t want police peeking through our windows. If all they need is ‘reasonable cause’ then all they need to do is look through people’s windows they don’t like and wait for them to do something illegal and arrest them.

In both cases above the proper thing for the police to have done would be to have gone back to the police station and obtain a warrant.

If there is an immediate and compelling need for the police to intervene immediately I’m not sure what happens. For example, if a cop notices through a window a man chasing a woman around a house with a knife and runs in to save her I don’t know if that’s ‘legal’. It’s the moral and right thing to do but whether the man with the knife can now be prosecuted I have no idea. What if you and your wife were into some sort of kinky game where you play ‘stranger in the house’ and the police bust down your door? Silly maybe but stranger things have happened.

I think warrants for a search are very specific. For example the warrant will say the police are there to search for illegal weapons. If they happen upon a bag of marijuana while looking for weapons I don’t think they can get you for the marijuana.

I’m not certain about the above so if anyone knows for certain I’m ready to be enlightened.

This should be easy to find out. Go to http://www.findlaw.com and check all the Supreme Court cases dealing with the Fourth Amendment. It only seems to get argued in front of SCOTUS about once or twice each term.

Actually, the police are allowed to look through your window. The courts say that if a normal person expects privacy, they will close the curtains. The police can get a warrent based on what they see.

There is a case going through the courts now on whether the police can use thermal imagers to look through your walls from the outside to obtain evidence.

But yes, in most cases, the US contitution protects your home from warrentless searches.

If you invite the police into your house, then they don’t need a warrent for anything they see. They can’t search it just because you let them in the door. You can tell them to leave, or to stay out of a room, etc. But anything they see is legal evidence, and if it’s illegal to possess, they can arrest you.

starfish seems to be correct based on some quick reading I’ve just done. If an officer asks you if it is ok to search your car or home and you say that is ok you’ve just written them a blank check. The officer, when asking, cannot coerce you however. Not even a little bit. If the officer says, “If you don’t let me search your car I’ll just go and get a warrant anyway,” then that constitutes a form of coercion under which you can’t freely give consent.

However, starfish is only partly correct on the police’s ability to act upon what they see when invited in to your house. In the example I gave above about the dorm room with the marijuana plant I believe the plant belonged to the roommate who did not agree to let the police in (he wasn’t present and essentially another cannot consent to a search on your behalf).

It seems to get a little weird in this area when it becomes confusing about who has the right to grant consent for a search.

Who would’ve guessed? I also would have assumed the mother had the authority to grant consent for a search but apparently not.

I’m still not certain about what police can do if they see illegal activity through a window of a private residence. I’m looking for relevant case law regarding this but, not being a lawyer, I’m not very efficient in my searches and haven’t turned anything up one way or another yet.

Under normal circumstances the 4th Amendment to the U.S. Constitution limits when and how the police can search your home. Individual states’ constitutions may grant additional protections, but the Federal Constitution acts as a “floor” to the rights of U.S. citizens.

Normally a warrant is required, but police can use the “exigent circumstances” doctrine to enter. This is typically triggered when the cops are chasing someone in “hot pursuit” who high-tails it into your home to hide. The police can give chase into your house w/o a warrant. When they find your meth lab on the coffee table next to the fleeing criminal, you’re out of luck.

Protection under the 4th Amendment has been steadily whittled away by the S.Ct. over the years. You have almost no protection from searches of your automobile, and ironically, campers are considered automobiles rather than houses for 4th Am. purposes.

If you let the police into your home, anything illegal they can see, they can arrest you for. The illicit items must be in “plain view” and their illegal nature must also be obvious. I.e. the fact that you stole your stereo is NOT obvious, but the clear hefty bag of full of marijuana that you have been using as a bean bag chair is.

The police can not only look through your window, they can look through it when you live on the 35th floor and they must use telescopes from across town in another tall building to do so. Whether thermal imaging devices are allowed is currently being decided.

Bottom line is: keep the shades drawn and invest in an intercom system, and remember that if police develop probable cause they can get a warrant to search anyway.

You can say that again. I think perhaps the most egregious of the removal the 4[sup]th[/sup] Amendment protections has been the allowed use of road blocks by police. Who would think such gestapo tactics would be allowable in this country? Basically you can be pulled over for no reason whatsoever and questioned by police in the dubious pursuit of making roads safer on the off chance you are doing something illegal (there is no evidence that road blocks make roads safer than the same number of police out on their basic patrols). How the SCOTUS ever thought this was ok is beyond me.
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety – Benjamin Franklin

Sorry…meant to include this in my post just above…

Forget 4[sup]th[/sup] Amendment protections! Doesn’t this violate the 1[sup]st[/sup] Amendment right to privacy? Or as long as I don’t actually step on your property I’m allowed to peer in your windows?

If that’s so that’s really whacked out. If the SCOTUS can wrangle a right to an abortion from a right to privacy how can they not manage to prohibit peeping in someone’s windows? Protracted spying on a citizen’s private property with no warrant is out of hand. Granted it’s probably a useless waste of manpower if it’s done randomly but if they have a target in mind this is a prime candidate for police abuse.

Err… The 1st Am. doesn’t actually give any right to privacy - that’s an entirely different issue.

As far as the 4th goes, it gets even wackier. Don’t even get me started on “curtilage” and fly-bys. LEO’s can stand on your property. The 4th Am. 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.”

Note that automobiles (or even carriages) aren’t mentioned. Note also that the word “unreasonable” is in there. That is how so many of the exceptions are justified. The justification for “peeking” doesn’t give police the right to enter at that moment, but allows the LEO to have a warrant issued based on his/her oath that s/he say something illegal happening in your house.

To answer an earlier post: if the police see domestic violence in a home that would constitute an “exigent circumstance”. I think that if they saw an armed burglar holding you up in your home, you’d probably want them to come right in.

What First Ammendment right to privacy? Yes, the SC does seem to recognize the existance of a right to privacy, but I’ve never heard that it’s based on the First Ammendment. The First Ammendment is freedom of speech, freedom of the press, freedom of assembly, and freedom of religion.

As I understand it, a person’s privacy is only considered to extend to the reasonable measures that they take to ensure it. If you go out in the street naked, for instance, you can’t expect people to look away based on your right to privacy, because you didn’t take any measures to ensure it. This is also how they justify the reasoning behind the “open curtains” thing: If you don’t want folks looking in through your living-room window, then you should close the drapes.

So, what’s up with these “no knock raids” I keep hearing about police making on houses where drug dealing or illegal weapons or whatever are suspected? Where they just break the door down and charge in? Can they/do they really do this?

I can’t believe I did that. Believe it or not I really did know that the First Amendment does not specifically mention a right to privacy. It was a right to privacy, however, which was inferred in Roe v. Wade to justify a woman’s right to get an abortion. This is one of the points frequently attacked by opponents of abortion rights and is a likely candidate as reason for a future SCOTUS to overturn Roe v. Wade.

I used to work for a women’s health clinic that was on the front lines of this stuff and I really did know about the privacy aspect and its place all too well. I’m very embarrassed I did that. Must’ve been a brain fart or something.

Just out of curiosity does SCOTUS having inferred a right to privacy in Roe v. Wade extend to anything else? That is to say, can I go to court claiming a violation of a constitutional right to privacy (pick your circumstances but different from the abortion issue)?

(And please don’t tell me I can go to court for anything I want…I mean to ask if this is a reasonably supportable argument in a court of law).

originally posted by Hazel

If they ask the judge who signed the search warrant to allow them to enter the premises without knocking and the judge says they can, then they are allowed to make “no-knock raids.”

“Just out of curiosity does SCOTUS having inferred a right to privacy in Roe v. Wade extend to anything else? That is to say, can I go to court claiming a violation of a constitutional right to privacy (pick your circumstances but different from the abortion issue)?”

Well, you would imagine that the heart of a privacy right would be the right of two (or more) sane adults to perform in a private place whatever sexual acts they consensually choose. However, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld a Georgia statute banning sodomy as not contrary to any right recognized under the Constitution. As the case points out, the cases where privacy was allegedly recognized actually involved a liberty interest in family relations, whether or not to procreate (marriage, contraception, abortion), and/or the raising of children. Though the case involved homosexual sodomy, the language used by the majority implies that there’s no constitutional protection for any sexual act between unmarried persons: “And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.”

If the police have a warrant to enter your home to search for evidence of the crime they suspect they may also gather other evidence for other crimes. But they cannot look for an elephant in a cigar box. If they are looking for say a stolen VCR they cannot open say a vial on your night stand.

As for “letting them in” Police use the do you mind ploy.
“Do you mind if I look?”
“Yes.”
“Thank you.” Starts searching.

As has been previously noted, the Supreme Court has steadily eroded protections afforded by the 4th Amendment. An extremely poignant example occured a few weeks ago when the court affirmed, in a nutshell, that you can be arrested for minor traffic offenses which are punishable by nothing more severe than a fine. In the case in question a Ms. Gail Atwater was driving her kids home from soccer practice when she was stopped by an officer on the charge of not wearing a seatbelt, nor having her children placed in seatbelts. The officer verbally berated her, handcuffed her and took her to jail where she had a mug shot taken, was placed in a cell etc. All well and good, you may say - the officer may have been a bit overzealous, but he was only doing his job. The scary corollary, of course, is that once you’ve been placed under arrest your vehicle and its occupants may be searched without a warrant. This means, effectively, that the police can pull a ‘suspect’ over on the guise of having, say, a taillight out, place him under arrest and search his vehicle, all without bothering with that pesky due process thing. This is exactly the sort of thing the 4th Amendment was written to prevent. The case is ATWATER et al. v. CITY OF LAGO VISTA etal. It’s worth a read.

I don’t want to sound snippy, but in the General Questions forum, on a website devoted to fighting ignorance, believe me when I say that if you don’t know what you’re talking about, then unlike the SATs, it doesn’t help to guess. If you are compelled to guess, at the very least, mention that you’re guessing.

sewalk:

Police may perform a brief pat-down search of an automobile’s driver and passengers if they have a reasonable, articulable suspicion that there is a danger to their safety or that a crime has been committed. This standard is less than probable cause, but greater then simply a hunch. The officer must be able to point to specific, articulable facts that justify his conclusion.

Such stops are known as Terry stops, after the Supreme Court cases that defined the standard.

It is not complete, then, to say that police need probable cause to detain and at least briefly search. Anything discovered during the course of that search is admissible, and may give rise to probable cause, which in turn can justify a more complete search.

Whack-a-Mole:

In the college student case, roommtes generally have joint control over the common areas they share, and each may consent to a search. In the facts you describe, the marijuana would be admissible under the plain view doctrine: the officer was lawfully present and observed the evidence in plain view. At that instant, he had probable cause to arrest, and to effect a search incident to arrest, which does not require a warrant.
-Rick

Atwater v. Lago Vista

[!28[group+syllabus!3A]!7C[level+case+citation!3A]!29/doc/{t42713}/pageitems={body}/hit_headings/words=4/hits_only?"]Terry v. Ohio](http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=[group+392+u!2Es!2E+1!3A)