How far can police go? Protective warrantless sweeps
Frequent readers of my weekly blogs, newsletters and books along with those who have watched some of my more than 30 online videos, understand that reasonable suspicion and probable cause are critical issues in any criminal case especially those involving contraband such as illegal narcotics or drugs, guns, firearms and even DUI/DWI.
Evidentiary Standards & Searches
Remember that at trial, the prosecution must establish your guilt beyond a reasonable doubt but police don’t need this level of proof to search you or your property. Police only need reasonable suspicion to search your person (aka Terry Stop & Frisk) and to stop your car if there is suspicion of DUI. They need probable cause to stop a car (traffic violation) in non DUI situations, obtain search warrant and or arrest you.
In recent years, Pennsylvania has relaxed the evidentiary standard for warrantless searches outside of one’s home or place of business. I encourage you to read my previous blog on warrantless searches of cars and vehicles and to check out my free download section. As discussed in one of my recent videos, the search of home is very different than one done outside of it. A person’s home is considered the place where a person’s expectation of privacy is at its highest level. Normally, police need a search warrant if they want to search a person’s home or place of business. This is because under the Pennsylvania and US Constitution, all searches done without a warrant are considered illegal.
The Warrantless Searches of a Home
While warrantless searches are on their face illegal, the law at the federal and state level provides exceptions to the warrant requirement. In the case of a motor vehicle, Pennsylvania, New Jersey and many other states find that the warrantless searches of motor vehicles are permissible because the inherent mobility of the car or vehicle itself would cause police to lose the potential the evidence if they didn’t search the property. In the case of a house, however, the argument is much weaker that police will lose evidence if they don’t perform a warrantless search.
Warrantless searches of home are only permissible if the owner gives permission (which one should never do) or the exigent circumstance of a “hot pursuit” exists. This means that unless you let police in your house to search it, they can only search without a warrant if they are chasing you into it. Once inside the home following a hot pursuit, police are permitted to perform a “protective sweep” of the home for their safety.
Protective Sweeps are Constitutional
This protective sweep is to ensure that no one is hiding within the home who could perhaps do harm to the officer. This protective sweep (visual search) allows the officers to search any place a person could theoretically hide which means closets, underneath beds, attics etc. During the course of this protective sweeps, police are permitted to take evidence of any other crimes that are in plain view. So if police finds illegal drugs on your kitchen counter during a protective you will likely be charged with illegal drug possession or perhaps even possession with the intent to deliver (PWID). This same protective sweep, however, wouldn’t allow police search in your sock drawer for those same drugs. This sweep also wouldn’t allow police to open kitchen cupboards or other small areas where a person could not possibly hide.
Remember if police want to search your home they need a warrant. If they want to search it anyway, don’t get in their way but never give your permission! Consent destroys your constitutional rights!
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