Posted On: May 29, 2009 by Shorstein & Lasnetski

When Can a Police Officer Enter My House Without a Search Warrant?

As residents in the U.S., we have the Constitutional right to be free from unreasonable searches and seizures. That protection from intrusion from police officers and other government officials is greatest in our homes. Normally, if a police officer wants to enter your house to look for evidence of a crime such as illegal drugs or guns, he/she needs to have probable cause and obtain a search warrant signed by a judge.

However, in rare cases, a police officer can enter your house without a search warrant. But, as indicated, those cases are rare. Consider this scenario as an example. The defendant forgets to pick up his eight year old child from school. The school officials call the defendant but cannot reach him so they call the local police department. The police department's policy is to try and locate the parents before turning the child over to the Department of Child and Family Services (DCFS). The police officer takes the child to his house. No one appears home, and the doors are locked. The police officer and the child are able to open the locked garage door and go inside the house with the child. No one appears to be home, but there is also nothing unusual about the house indicating any type of trouble or emergency. The child and police officer walk around the house and find that the defendant's room is locked. The police officer manages to open the defendant's bedroom door and finds numerous bags of cocaine in the room.

Is this a valid search? No. Can the bags of cocaine be used against the defendant in court after his arrest for trafficking in cocaine? No.

The first step in the analysis focuses on whether the police officer had a search warrant to enter and search the house. He did not. The next step is to determine whether the police officer was confronted with "exigent circumstances" that would justify entry into the house and a search without a search warrant. The law is clear that without the search warrant, the police officer may not enter and search that house (with an exception I will explain below) unless he/she is confronted with exigent circumstances. Exigent circumstances allowing a police officer to enter and search someone's home without a warrant are very rare. The courts are looking for a serious emergency and an urgent need to enter the house. In other words, the situation must be very serious AND the police officer must be faced with a situation where he/she has to act quickly to handle the emergency. A common example might be a situation where someone is suffering from a serious medical problem (like a heart attack or gunshot wound) inside the house and needs help immediately. In the case described above, there was neither evidence of a grave emergency nor a situation that needed to be handled immediately. As a result, the police officer could not lawfully use "exigent circumstances" as a basis for entering and searching the house.

One other basis for entering and searching the house without a search warrant that might apply to this situation is consent. However, not just anyone can consent to the search of a house. The person giving consent must have a common authority to the area being searched. Perhaps, the child had common authority to the house as a whole so he could consent to the police officer entering the house. However, the child likely did not have common authority to his dad's locked bedroom so he could not give valid consent to enter and search that room. However, if the police officer had obtained consent from the defendant himself, the search could certainly have been valid.

The situations that allow a police officer to enter and search one's home without a search warrant are few and far between. If you have been arrested for a drug charge or any other crime based on what you feel is an illegal search, feel free to contact us so we can discuss your rights and evaluate the validity of the search and whether the evidence in your case should be thrown out.