criminal defense attorney

Can a Criminal Defense Attorney Challenge a Search of My Home?

Published On - July 19, 2016

Stan Bennett Criminal Law

criminal defense attorneyUnless you called for help, having the police show up on your doorstep is typically not good news. If they are there to conduct a search and seizure of your home it is definitely not a good thing, particularly if the search turns up evidence of criminal activity. If you find yourself in this position you may be wondering if there is anything you can do about the evidence they found during the search. Specifically, you may be wondering if a criminal defense attorney can challenge the search of your house. The answer is that challenging a search and seizure is always a possibility; however, your defense attorney will need to have a valid legal reason to do so.

Constitutional Limits

In the United States law enforcement officers are limited in their actions by the protections found in the U.S. Constitution. The Fourth Amendment to the U.S. Constitution is where the limits on a search and seizure can be found, reading as follows:

“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.”

The Tennessee state Constitution has a similar article that also limits the actions of law enforcement officers with regard to searching a home.

The Warrant Requirement

Although the protections found in the U.S. Constitution have been watered down to some extent by the courts over the years, your home remains the most heavily protected area. As such, law enforcement officers must first obtain a warrant before they can conduct a search and seizure unless one of the few exceptions to the warrant requirement exists. A search warrant must be based on probable cause, defined as “a reasonable belief that a crime has been committed and that evidence of the crime can be found at the premises to be searched.” To get a search warrant an officer must fill out and sign a probable cause affidavit explaining what the officer believes gives him/her the probable cause to conduct the search. A judge or magistrate then reviews the request and grants it or denies it.  If granted, the judge signs the warrant and the search is executed.

Exceptions to the Warrant Requirement

In order for a search and seizure to be legal if the officer did not fist obtain a warrant, one of the following exceptions to the warrant requirement must apply:

  • Consent – by far the most commonly used exception, this exception applies if you consent to a search. If you waive the warrant requirement by allowing a search without a warrant than a warrant is not needed so never consent to a search of your home unless you first consult with a Tennessee criminal defense attorney.
  • Incident to a valid arrest – if the police are effectuating a valid arrest inside your home they are allowed to search the area under the arrestee’s immediate control to check for weapons or contraband. This is a limited exception, meaning they cannot extend the search to other areas of the house.
  • Plain View – this covers situations where you answer the door and the police officer can see, in plain view, contraband or evidence of a crime. Always be careful what is visible when you answer your front door!
  • Hot pursuit/emergency – if the police are chasing a fugitive and he/she runs into your home, or the police hear cries of help from your home, for example, they may search based on the search being an emergency situation that did not allow time to obtain a warrant.

How Is a Search Challenged?

If the police conducted a search without a valid warrant your Tennessee criminal defense attorney can file a motion to exclude. The motion will likely be set for a hearing at which time the State of Tennessee, through the prosecuting attorney, must prove that one of the exceptions to the warrant requirement existed. If no exception can be proven, the judge should declare the search to be illegal and order all evidence seized during the search to be excluded from trial.

Contact Us

If you have been charged with a criminal offense in the State of Tennessee that included a search and seizure and you believe the search was illegal, it is in your best interest to consult with the experienced Tennessee criminal defense attorneys at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.

To learn more, please download our free search and seizure basics here.

Stan Bennett
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