criminal defense lawyer

Criminal Defense Lawyer Explains the Exceptions to the Warrant Requirement

Published On - October 31, 2017

Stan Bennett Criminal Law

criminal defense lawyerDid the police recently conduct a search and seizure of your home and find potentially incriminating evidence as a result of that search?  If so, you can count on the prosecuting attorney trying to use that evidence against you at trial. Whether the prosecutor is allowed to do that will depend on a number of factors, starting with whether or not the police had a valid warrant authorizing them to conduct the search. If they did not have a valid warrant, the legality of the search and seizure will hinge on whether one of the narrow exceptions to the warrant requirement existed at the time of the search. Because a search and seizure involves numerous unique facts and circumstances it is imperative that you consult with an experienced attorney to determine the legality of your situation. In the meantime, however, a Tennessee criminal defense lawyer explains the exceptions to the warrant requirement.

Your Right Against Unreasonable Searches and Seizures

In the United States, we enjoy a number of unique rights and privileges afforded to us by the U.S. Constitution. Most of those rights and privileges can be found in the first ten Amendments to the Constitution, collectively referred to as the “Bill of Rights.” The Fourth Amendment is where your right against unreasonable searches and seizures 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 4th Amendment, as originally written, means that a search and seizure cannot be conducted without first obtaining a warrant and that warrant must be based upon probable cause. Since it was originally incorporated into the Constitution, the 4th Amendment warrant requirement has been watered down by the courts, particularly as it applies to the search of your person or your vehicle. The warrant requirement remains relatively strong though as it applies to the search of your home. Even still, there are a few exceptions that have been carved out.

Exceptions to the Warrant Requirement

When the police wish to search a private residence, a warrant must first be obtained unless one of the following exceptions applies:

  • Consent – the most commonly used exception to the warrant requirement is consent. In simple terms, if you consent to the search of your home, no warrant is needed. Law enforcement officers will try various tactics to obtain your consent, including outright lies. A common tactic is to make it sound as if they are already in the process of getting a warrant and you are just wasting time by waking everyone wait. Never consent to a search without first consulting with a criminal defense attorney because once you consent an attorney cannot argue that the search violated your 4th Amendment rights.
  • Plain view — if a law enforcement officer sees contraband or evidence of a crime in plain view, a warrant is not required to conduct a search. For example, if you answer the door to a police officer and the officer can easily see bags of heroin on the table just inside the door, the officer is not required to wait for a warrant to conduct a search and seizure. This does not allow the police to enter your property illegally and then look around for something to use as a basis for the “plain view” exception.
  • Incident to arrest – if a law enforcement officer is conducting a lawful arrest, he/she may conduct a search within the detainee’s immediate control for contraband and/or weapons. For instance, if a police officer is serving a felony arrest warrant for you at your home, the officer may search the area immediately near you to make sure you do not have contraband and/or weapons that you could bring with you. This exception does not authorize a search of the entire home, nor even an entire room in the home.
  • Emergency/Hot pursuit – this exception includes the most “grey” area, meaning it can be difficult to define precisely. Basically, it includes three exceptions in one that can be remembered as the three D’s –danger, destruction, detain. First, if the police believe someone is in danger, they may enter without a warrant. Second, if an officer reasonably believes the destruction of evidence may occur, a warrant is not needed. Finally, if the police are in “hot pursuit” of a suspect who runs into a home and they must follow to detain the suspect, a search can be conducted without a warrant.

Contact a Criminal Defense Lawyer

If you have additional questions or concerns about a search and seizure in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee criminal defense lawyer as soon as possible. Contact the team at Bennett, Michael & Hornsby today by calling 615-898-1560 to schedule your appointment.

Stan Bennett
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