Even after reading the above, you likely still have some questions about search and seizures. Here are some answers to commonly asked questions:
- What should I do when a search of my home is being performed? If the police are searching your home with a valid warrant, the best thing you can do is to refrain from interfering with the search in any way. Again, stay calm and cooperate with any police requests. The police may move your property in order to conduct the search, but they cannot unreasonable destroy anything.
- Do I have the right to remain silent? Police officers may use a search as an opportunity to question you in regards to a crime. However, you have the right to exercise your right to remain silent – just tell the officer that you are exercising this right and ask if you are being detained or arrested. If the officer says that you are not, then you have the right to go.
- What happens if I refuse a search? If you refuse a search, an officer may use one of the scare tactics mentioned above – like telling you that you’ll only make the situation worse for yourself if you refuse – in order to get you to consent. Regardless, you still have the right to refuse. However, only verbally refuse; a physical refusal can be dangerous, and may result in charges against you. You are completely within your legal rights to refuse a search, and the police cannot arrest you for doing so.
- How do I know when I’m free to go? After you have refused a search, the next step is determining whether or not you are free to go. The easiest and surest way to determine this is simply to ask the officer. You can say, “Officer, am I being detained?” or, “Officer, am I free to go?” If the officer does not answer, repeat the question. If the officer says that you are not being detained, leave immediately.
- Should I ask for an attorney? If the officer says that you are, in fact, being detained and are not free to go, you should assert your right to remain silent and request an attorney. You should also reassert that you do not consent to a search.
- Can the police search my car after it is towed and impounded? The answer to this is yes – if police officers tow and impound your car – which they reserve the right to do for myriad reasons – then they also have the right to search it. For example, a person who is arrested of a DUI and who is unable to safely operate their vehicle may have their car towed and impounded by the police. Most of these searches are inventory searches, in which police are simply taking an inventory of items within the car, not searching it for evidence related to a crime. If evidence related to a crime is found during an inventory search, the search may be contested.
- Do police have the right to search my house if someone else gives them permission? Consider a situation in which you rent an apartment with a roommate. While you are not home, the police come to your door and ask your landlord or your roommate for permission to search the property. During the search, the police officers search your room. Do they have the right to do this?
The answer is that it depends. The person who is responsible for an area has the right to consent to or refuse a search of it. So, your landlord cannot give consent for a search of your private space (like your room or inside of your apartment), but can consent to consent to a search of communal areas, like a shared hallway. Likewise, if you have a roommate, your roommate can consent to a search of any area that they are in charge of.
- Do I have to let police officers inside of my home? No – if police officers show up to your door, you are not legally required to answer the door. Further, if you do answer the door and police officers ask if they can come in, you can refuse. This is often advised, as police officers who enter a home may claim that they see something that gives them probable cause to search the property without a warrant.
- If I am arrested, can the police search me? When an individual is arrested and charged with a crime, then the police have the right to search the individual and the immediate area surrounding the arrest.
- Can the police search my whole house when they have a warrant? A warrant must name the specific property and part of the property that is to be searched. For example, if the police have a warrant to search your backyard, they do not have the right to search the inside of your home. On the same note, if the police have a warrant to search your bedroom, they cannot take their search to your bathroom, basement, kitchen, yard, etc. Ask police officers to see the warrant and ask which areas of the home the warrant applies.
- When can a police officer frisk me? Many officers will combine their right to detain with their right to frisk as one-in-the-same. However, a frisk is a type of search, and an officer can only frisk an individual in the event that the police have reasonable suspicion to believe that the individual poses an immediate threat of serious injury to the police officers, to the person themselves, or to others in the immediate area. If no such threat exists, and the police do not have reasonable suspicion, a frisk is not legal. Further, an initial frisk must be limited to a search for weapons (this requirement was established in Terry v. Ohio).
The attorneys at the Law Office of H. Chase Harbin are ready to answer any other questions that you may have. Contact us today to request a free case consultation.
