If police want to question you or search your property, you have rights that limit how and what they are able to search. These rights are guaranteed in the Fourth Amendment of the Constitution, which prohibits “unreasonable search and seizures” and requires police to obtain a search warrant first.

To receive a search warrant, law enforcement must have “probable cause.” Probable cause is the legal justification for why you should be searched. But the term does not have a strict definition. Instead, judges can determine whether there is enough of a reason to suspect you of a crime or that you have important evidence in a criminal investigation.

If police and prosecutors can show a judge enough evidence that it’s reasonable to suspect you of a crime, the judge may find probable cause and grant a search warrant. This allows police to search you or your property outlined in the warrant.

Search Warrants Obtained With Probable Cause

If law enforcement discovers evidence during an illegal search that did not have probable cause, a judge may forbid that evidence from presentation at trial. As such, it’s important for you to know when law enforcement may violate your rights.

Before conducting their search, law enforcement officials should present you with a copy of the search warrant. It should have a judge’s signature, set the boundaries of the search, and state the nature of the crime you’re being investigated for. If they don’t have a warrant, they likely cannot conduct their search.

The searches must also be conducted reasonably. You are allowed to take notes of how officers conduct the search and what they look at.

Exceptions to Probable Cause

Though probable cause is one of the most common ways law enforcement can conduct legal searches and seizures, there are exceptions to the probable cause requirement that can allow police officers to legally conduct a search without it.

Consent

If you give police permission to conduct a warrantless search, you may be waiving a claim based on your Fourth Amendment rights. If the police ask you if they can look around your property without a warrant, you can say no. The police, however, are not required to tell you that you have the right to refuse.

Depending on how strictly your jurisdiction enforces the rules around consent and legal searches, you may be able to prove that you did not grant consent if there was a level of coercion or misinformation from the police. The much safer option is to refuse to give consent unless they can produce a valid warrant.

Community Caretaking Doctrines

Some states will allow for probable cause exceptions under Community Caretaking Doctrines. Under these exceptions, the police may search your home, car, or other property if they have reasonable suspicion that you or another are in danger.

If the police uncover evidence of a crime during this wellness check, you may be arrested. The evidence obtained during this search could also be considered admissible in court. Checking on a parked, running vehicle in the middle of the night and discovering a drunk driver could be a situation where a Community Caretaking exception applies.

Evidence in Plain View

Officers may conduct a search and arrest you if evidence of an illegal activity is in “plain view.” If they are able to see illegal drugs out in the open, for example, they may conduct a search and arrest without a warrant or further probable cause. There are three requirements for a plain view search:

• The officer must legally be allowed to be at the location where they see the open evidence
• The officer must have a legal right to access that evidence
• It must be immediately obvious that the evidence is illegal.