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Matthew Radefeld & Dan Juengel
Matthew A. Radefeld and Daniel A. Juengel

Home searches: warrants generally required

On Behalf of | Jun 27, 2023 | Criminal Law |

The right to protection against law enforcement intrusion into the home is deeply valued in American law. As the maxim goes, your home is your castle – and police have a high bar to try to overcome to get beyond those privacy expectations.

Here are four things to know about how this is applied in practice.

Point 1: Warrantless searches are generally not permitted.

Because of the Fourth Amendment’s protections against unreasonable searches and seizures, warrantless searches of a home are generally not permitted. In case after case, the courts have insisted that the home can be searched only with a valid search warrant, subject only to very limited exceptions.

Point 2: Search warrants require probable cause.

Search warrants are issued by a judge and grant police the legal authority to search a specific location for specific items. But probable cause – tangible evidence suggesting a crime has been committed – is needed before this warrant is issued.

Point 3: Search warrant exceptions are limited.

One such exception is consent. For example, police could knock on someone’s door and ask to search for signs of drug activity. But to be valid, consent must be voluntarily given, not the result of coercion or deception. And the scope of the search cannot go beyond the consent that was given. If someone consented to a search of the garage, that doesn’t mean they consented to a search of the house itself.

Another possible exception to the warrant requirement is exigent circumstances, where police are in “hot pursuit” of someone suspected of a crime. In the case of Lange v. California (2021), however, the U.S. Supreme Court held unanimously that a suspected misdemeanor offense does not necessarily allow police to bypass the warrant requirement when pursuing a suspect into a home.

Point 4: Protection of the home extends to areas immediately adjoining it.

The U.S. Supreme Court has been so protective of privacy rights in the home that those rights extend into the area immediately around the home. Under common law, such areas were called the “curtilage.”

The Supreme Court reinforced the protections that extend outside the home in a case a decade ago involving drug-sniffing dogs. In Jardines v. Florida (2013), the Court held that police cannot use drug-sniffing dogs to search for narcotics under the front porch of a private home unless there is consent or a search warrant obtained by a showing of probable cause.