Police Searches & Your Home – Warrant vs. Warrantless Searches
Police searches are a huge part of criminal defense work many of my readers have questions about home searches as opposed to a vehicle or a car. The constitutional issue of an illegal search and seizure is an important concept especially in cases involving illegal drugs, guns, and firearms. In most cases, this type of contraband is discovered following a home or residence search.
While some of these searches occur with a search warrant, many don’t involve a warrant and are based on some type of exigent circumstance. Exigent Circumstances are exceptions to the general requirement of a search warrant under the Fourth Amendment to the United States Constitution. These occur when a law enforcement officer or a police officer has probable cause but doesn’t have sufficient time to secure a warrant.
Exigent Circumstances & Search Warrants
To determine if exigent circumstances exist, a court looks at when the officer made the warrantless search to evaluate if a reasonable officer, at that point and time, would believe that it is critical to act and not practical to secure a warrant. Courts may also consider the following factors:
- whether the suspect was possibly armed,
- planning to escape,
- or whether the police officer believed that his safety or the safety of others was threatened.
Exigent circumstances also exist during the hot pursuit of a suspect who was possibly involved in a crime and in the process of fleeing. In most cases, if there are no exigent circumstances, police need a warrant to search property regardless if it is a house or car. This initially changed somewhat in Pennsylvania when our Commonwealths’ Supreme Court ruled that police could search a car based on nothing more than probable cause. In that decision (Commonwealth vs. Gary); the Supreme Court basically said that the car is itself an exigent circumstance because it is easily moved after an arrest regardless of whether the police could impound it. Com v. Alexander has since overturned that case and Pennsylvania courts now require a warrant to search a car. The car’s mobility is no longer an exigent circumstance in and of itself!
As written in previous articles, probable cause is the reasonable belief, based on an officer’s training and experience that a crime has occurred or is occurring. This is the standard in Pennsylvania and it was always a standard at the federal level and in many state courts like New Jersey and New York. The search of a car, however, is much different than the search of a house.
Why is a car search different from a home search?
Courts have a much easier time justifying the search of an automobile or vehicle that travels on public roads and is highly regulated. States like Pennsylvania and New Jersey, like so many others, regulate the operation of motor vehicles and cars on the roads. This is one of the primary reasons why courts treat vehicles much different than houses. The regulation of cars (inspections, insurance) translates into a lower expectation of privacy in one’s car than in one’s home.
Motion to Suppress Evidence
The issue of an illegal search and seizure is litigated in a criminal court during a motion to suppress evidence where the burden is always on the Commonwealth (prosecution) to establish by a preponderance of the evidence that probable cause existed. The burden is on the prosecution to present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent and that the exigency was in no way attributable to a decision by police to forego the need for a warrant.
To determine whether exigent circumstance exist for a house search, a court will consider the following factors:
- Gravity of the offense (how serious is the crime);
- Whether the suspect is believed to be armed;
- Whether there is a above and beyond a clear showing of probable cause;
- Whether there is strong reason to believe that the suspect is within the premises being entered;
- Whether there is a likelihood that the suspect will escape if not swiftly apprehended;
- Whether the entry was made peaceable;
- Time of the entry
The law in Pennsylvania and New Jersey pertaining to search and seizure remains focused on the balance of protecting the right of individuals to be free from unreasonable searches and seizures and protecting the safety of citizens and police officers by allowing police to make limited intrusions on citizens while investigating crimes. For more information on criminal defense strategies and tactics, please visit our free download section and keep reading our blog. This is a critical issue in any illegal possession criminal case involving an illegal gun, firearm, drug or narcotic!
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