Search Warrants: When the Police Must Have a Warrant and When They Can Conduct a Warrantless Search

What Is a Search?

Under the Fourth Amendment, the police can conduct a search in two ways. The first way a search is conducted is when a person has a reasonable expectation of privacy, and the police invade their privacy to collect information. For the expectation of privacy to be reasonable, the individual must have a subjective expectation of privacy that must be objectively reasonable. A search can also occur when a law enforcement official physically intrudes on private property to obtain information or evidence they can use to arrest and convict someone of committing a crime.

How Do the Police Obtain a Warrant?

In most cases in North Carolina, law enforcement officers must have a search warrant to conduct a valid search. A search warrant is a legal document signed by a judge that allows the police to perform a search. The warrant must be based on probable cause that an individual was involved in the commission of a crime and that evidence will be found as a result of the search.

Under the Fourth Amendment, a search warrant must also:

Be supported by an oath or affirmation of a judge or magistrate

Specifically describe the place, property, or person to be searched

Specifically state the individuals or property to be seized

What Are the Exceptions When the Police Can Search Without a Warrant?

A number of exceptions exist when the police are not required to obtain a warrant to conduct a search. These exceptions include the following.

Consent

If an individual consents to a search of their home, vehicle, other property, or person, the police would not be required to obtain a warrant before performing a search. It is never a good idea to give the police permission to search when they would otherwise need to obtain a warrant.

Plain View

The police can perform a search and seize evidence if the evidence is in plain view. However, they must be lawfully present at the location to be permitted to search without a warrant. For example, if they were unlawfully at someone’s home, they would not be able to search and seize evidence in plain view without getting a search warrant.

Traffic Stop

Individuals are considered to have a lesser degree of privacy when they are in their vehicles than in their homes. If the police make a traffic stop and have probable cause to suspect someone committed a crime, they may be allowed to conduct a warrantless search. For example, the police may be able to search a car when pulling someone over for DWI. However, they can only search for evidence associated with that crime.

Incident to an Arrest

The police are also permitted to search a person they are arresting without a warrant. They can pat the individual down, look in their pockets, and search their bags for weapons.

Exigent Circumstances

No warrant is required when there are exigent circumstances that would justify an immediate search. For this exception to apply, the circumstances must make a reasonable person believe that entering a home or another property was necessary to prevent someone from being harmed, a suspect’s escape, or the destruction of property.

Emergency or Hot Pursuit

The police can search for and seize evidence that could be easily altered, moved, or destroyed without a warrant. In addition, if someone is fleeing and enters a property, the police are allowed to follow them into the property without getting a search warrant.

What Happens if the Police Conduct an Illegal Search?

If law enforcement officials performed a search without a warrant when one was required, your attorney might be able to file a motion to suppress any evidence they obtained and are using to prosecute you. If the suppressed evidence is crucial to the prosecutor’s case, your lawyer may be able to get the charges dismissed or reduced to a less serious offense through a plea bargain.

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