Police entering apartments or homes, particularly of college students, is becoming an increasingly hot topic in and around the Springfield area. At this point it seems prudent to briefly discuss the current state of the law regarding when police can legally enter your home and to outline the rights of individuals faced with a decision as to whether to grant a government officer permission to enter.
The Fourth Amendment to the United States Constitution provides the backdrop to all entries into homes and dwellings, as well as any other governmental search (including vehicles). Simply put, the Fourth Amendment provides all people the right to be secure in their bodies and homes against unreasonable searches and seizures, and this right cannot be violated absent a warrant based upon probable cause. As with all Constitutional provisions and laws, Courts have carved out a few other exceptions to the freedom against unreasonable searches and seizures and to the warrant requirement.
The first thing people must understand is that government agents routinely conduct what is called a “knock and talk” investigation. What this consists of is simply knocking on the door of a home and speaking to the resident or whomever answers the door. In so doing, oftentimes officers attempt to gain entry into the home by getting consent. Officers also will take the opportunity to look inside the residence to determine if they see anything that could give them probable cause to enter. BY NO MEANS do you have to give them consent to enter. In fact, there is absolutely nothing that prohibits you from plainly saying you are refusing consent and politely closing the door in their face.
To determine when the Fourth Amendment applies, Katz v. United States, 389 U.S. 347 (1967), outlined a two part test: 1) has the person exhibited a subjective expectation of privacy; and 2) is society prepared to recognize this expectation as subjectively reasonable. Stated plainly, if a person is in a home, dwelling, or vehicle and they have the legal right to be there, they will almost always have their Fourth Amendment rights intact. What this means is that if a person is seized or searched, or if the dwelling they are legally in is searched, then they can challenge the legality of that search in Court if they are charged. The legal remedy in this situation would be called exclusion, which means the person can file a Motion to Suppress Evidence, claiming that the evidence was illegally obtained. If granted, the State would not be allowed to use the illegally obtained evidence at trial.
As the Fourth Amendment clearly states, law enforcement can enter a home to search or to arrest an individual if they have a warrant based upon probable cause and signed by a neutral and detached magistrate (which is now called a judge). However, even without a warrant, law enforcement may enter a home based upon a few other exceptions. As mentioned previously, consent is the most common exception to the warrant requirement. People are routinely nervous when speaking with police and frequently consent to a search even if they have something to hide. Either way, I never advocate consenting to a search as it is an invasion of privacy no matter what. Again, YOU DO NOT HAVE TO CONSENT.
A second widely used exception to the warrant requirement is the “plain view doctrine”. What this essentially means is that if the police have probable cause to believe that they have observed something in plain view that is contraband, then they have the legal right to enter and seize that item. This is again frequent when an item is in plain view in an automobile, or when it is easily seen through a window of a home. It is also common, again, when people open the front door of their residence during a “knock and talk”. If the officer observes an illegal item in plain view, then that gives the officer the legal right to enter and seize the item.
The “plain view doctrine” leads to a third widely used exception, and that is a search based upon probable cause to believe the search will uncover criminal activity or contraband. Very importantly for this discussion is again the situation when a person answers their front door for a “knock and talk”. We see this scenario play out time and again, and that is when a person answers the front door when they are having a party and the officer sees several people at the party who appear to be under the age of 21 consuming alcohol. This gives the officer probable cause to enter the residence and investigate the possibility of minor in possession of alcohol. A second common observation by police that can lead to probable cause is the odor of marijuana. If police smell the odor of marijuana coming from a room, that gives them probable cause to enter and search. These are frequent justification for entry into apartments, lofts, and dorm rooms in Springfield. Again, there is nothing that says you have to keep the door open or to open it wide enough for police to see inside.
A fourth exception to the warrant requirement is known as “exigent circumstances”. This is really a secondary exception to probable cause in that if an officer has a reasonable belief that evidence may be lost or destroyed in the time it takes to get a warrant, then they can legally search for or seize the evidence. Again, this typically applies if the officer already has probable cause, but is an exception worthy of its own category. One topic that is gaining major steam is that of blood draws and other intrusions into the human body. That topic is outside the scope of this article, but it is a hot Fourth Amendment issue right now, and often the government’s argument in those cases is exigent circumstances. However, Courts have recently ruled that a warrant is required for intrusions into the human body even in the cases of possible driving while intoxicated.
As far as searches of homes and dwellings, the lines are blurred somewhat when we are dealing with fraternity houses. Oftentimes the fraternity houses are owned, at least in part, by the university itself, thereby giving the university officials or security guards the ability to consent to an entry into the houses. However, in that situation, university officials do not have the authority to allow a search of the individual rooms within the fraternity house. Again, the people who live in the rooms will have a reasonable expectation of privacy in those rooms and they cannot be searched absent a Fourth Amendment exception. The common areas of the fraternity houses, however, are different and can be searched with valid consent.
The law on police entering the home is always being tested and ever evolving. When dealing with searches of your person or searches of a vehicle, exceptions other than those listed above might apply to the warrant requirement as well. If you ever have a question as to whether your rights have been violated, do not hesitate to contact an experienced criminal defense attorney with in depth knowledge of Constitutional law and emerging issues. Feel free to contact my office at 417-720-4800 or email firstname.lastname@example.org. Remember, you don’t have to consent to a search and you can revoke consent at any time.