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What to Do if You’re Arrested

If you are questioned by the police: FAQ

If a police officer wants to stop and question you, whether or not you must comply depends on the circumstances and the reasons the officer has for questioning you. This section explores some of the common questions people have about their rights and responsibilities when approached by a law enforcement officer.

If an officer wants to stop me while I’m walking on the street and I know I’ve done nothing wrong, should I comply?

A police officer may interfere with your freedom of movement only if he has observed unusual activity suggesting that criminal activity is afoot and that you are involved. Even if the officer is mistaken, however, you do not have the right to keep walking. As long as the officer has a good faith belief in your connection to criminal activity, he is allowed to detain you. Stopping you is one thing, however. It doesn’t mean that you must answer all of his questions. (See below.)

If you run away

It is not unusual for people who are approached by the police to run away. Some courts have recognized that many people will avoid contact with the police not because they are guilty of a crime, but because they reasonably believe that they may be mistreated or unjustly accused. Other courts view evasive behavior as evidence of guilt, however, and allow the police to rely on it as grounds for a detention.

If I am legally stopped by a police officer on the street, can he search me?

Yes and no. A police officer is permitted to briefly frisk your outer clothing for weapons if the officer reasonably fears for his safety. A frisk is different than a search in that a search may be conducted for evidence of a crime or contraband (an illegal item), and may be much more intrusive than a frisk. An officer who frisks you may not search you unless he has good cause to believe that you committed a crime or that you’re hiding an illegal item.

Can a frisk turn into a full-blown search?

When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package which the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person’s clothing. The lesson here is that a frisk often leads to a legal search. And if a search produces an illegal substance, it may result in an arrest.

If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?

The general rule is that you don’t have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. As with all rules, however, there is an exception. Many local and state governments have anti-loitering laws that require people to account for their presence if the police have a reasonable suspicion that they are loitering. Once the police have asked all of their questions about loitering, however, you don’t have to answer any others — such as questions about a crime in the neighborhood.

Arrests and Interrogations FAQ

An arrest occurs when a police officer armed with an arrest warrant utters the words “You’re under arrest,” or when a police officer significantly restrains your freedom of motion. The restraint must be more than a mere detention on the street. Although in most situations the police will take you to the police station for booking (photographs and fingerprinting), it is also possible for an officer to arrest and book you at the crime scene, and then release you when you give a written promise to appear in court at a later time. After the police arrest you, they will often question you in order to find out more about the crime, your role in it and whether there may be other suspects. There are several Constitutional protections that you may invoke during police interrogations.

Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples – such as blood, hair or fingernail clippings-is a violation of the U.S. Constitution’s protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution. DUI prosecutions may involve complicated issues regarding the samples sought (breath, blood or urine), whether serious injury or death occurred, and what consequences flow from a refusal to cooperate in the obtaining of any such samples.

When do the police need a warrant to make an arrest?

As long as the police have good reason (called “probable cause”) to believe that a felony has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage “a man’s home is his castle” still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense-such as a simple assault-and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

In most instances an officer can not make an arrest for a misdemeanor offense unless the offense is committed in his/her presence. Misdemeanor Domestic Violence cases may have different standards, however.

How do the police obtain an arrest warrant?

An officer must present sworn evidence to a judge that a crime has occurred and that the police have probable cause to believe that the crime was committed by the person they want to arrest. If the judge agrees, he/she will issue a warrant. The police are then entitled to seize the person wherever they can find him.

If the police make an illegal arrest, is the arrested person set free?

No. But if a search of the person or her immediate surroundings is conducted during the arrest and turns up incriminating evidence, the evidence may be kept out of the person’s trial on the grounds that it is “fruit of the poisonous tree”-that is, the evidence was found as the result of an improper arrest. Also, if the illegally arrested person makes any statements to the police after being arrested, the statements may not be used as evidence. This is true whether or not the arrested person was “read their rights.”

If I’m arrested, do the police have to ‘read me my rights?’

No. However, if they don’t read you your rights, they can’t use anything you say in response to questioning as evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by T.V. police immediately upon arresting a suspect:
You have the right to remain silent.
If you do say anything, what you say can be used against you in a court of law.
You have the right to consult with a lawyer and have that lawyer present during any questioning.
If you cannot afford a lawyer, one will be appointed for you if you so desire.
If you choose to talk to the police officer, you have the right to stop the interview at any time.
It doesn’t matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as evidence at trial. If you are not in police custody, however, no Miranda warning is required.

Will a judge dismiss my case if I was questioned without a Miranda warning?

No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.

What’s the best way to assert my right to remain silent if I am being questioned by the police?

If you’re taken into custody by the police, you don’t have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
I want to talk to an attorney.
I won’t say anything until I talk to an attorney.
I don’t have anything to say.
I don’t want to talk to you anymore.
I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point — and any evidence gleaned from that conversation-will not be admissible at your trial.

How heavy handed can the police get when asking questions?

Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. Any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Bail FAQ

What it means to post bail, how to pay for it, and what to do if you can’t.

What does it mean to ‘post bail?’

Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn’t show up, the court keeps the bail and issues a warrant for the defendant’s arrest.Bail can take any of the following forms:
Cash or check for the full amount of the bail
Property worth the full amount of the bail
A bond-that is, a guaranteed payment of the full bail amount, or
A waiver of payment on the condition that the defendant appear in court at the required time, commonly called “release on one’s own recognizance” or simply “O.R.”

Who decides how much bail I have to pay?

Judges are responsible for setting bail. In most Florida counties, a schedule of “standard” or “line” bonds have been set. These bond amounts may be posted before first appearance to secure immediate release. There may be restrictions on release; DUI arrestees may have to wait a period of time before they are released. Domestic Violence charges must usually be considered by a judge at first appearance before an arrestee is released. Most crimes are bondable as of right, however certain very serious crimes may carry no bond unless a special hearing is set. Often, a judge may set a bond when signing a warrant. The judge may also determine that a “no bond hold” be placed on a person in certain instances, such as violation of probation.

Are there are restrictions on how high my bail can be?

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.
Some judges set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose — called preventative detention — is thought by some to violate the Constitution, this practice has continued in many courts. Some very serious crimes, like murder, are not bondable as of right.

What can I do if I can’t afford to pay the bail listed on the bail schedule?

If you can’t afford the amount of bail on the bail schedule, you can ask a judge to lower it. Depending on the state, your request must be made either in a special bail-setting hearing or when you appear in court for the first time.

How soon can I appear before a judge?

In Volusia County every effort is made to bring the arrested person before a magistrate judge within 24 hours of the arrest. Magistrate court is held at the branch jail.
In federal court, a person taken to jail must be brought “without unnecessary delay before the nearest available . . . magistrate.”

How do I pay for bail?

There are two ways to pay your bail. You may either pay the full amount of the bail or buy a bail bond. A bail bond is like purchasing insurance: You pay a premium (usually 10% of the full amount of the bond), and the bonding company agrees to pay the full amount into the Court if you fail to appear at required proceedings.
A bail bond may sound like a good deal, but buying a bond may cost you more in the long run. If you pay the full amount of the bail, you’ll get that money back (less a small administrative fee) if you make your scheduled court appearances. On the other hand, the 10% premium you pay to a bondsman is nonrefundable. In addition, the bondsman may require “collateral.” This means that you (or the person who pays for your bail bond) must give the bond seller a financial interest in some of your valuable property. The bondsman can cash-in this interest if you fail to appear in court.

Nevertheless, if you can’t afford your bail and you don’t have a friend or relative that can help out, a bondsman may be your only option. You can find one by looking in the Yellow Pages; you’re also likely to find bondsman’s offices very close to any jail.

Is it true that a defendant who proves his reliability can get out of jail on his word alone?

Sometimes. This is generally known as releasing someone “on his own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court. He doesn’t have to post bail. A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

The defendant has other family members (most likely parents, a spouse or children) living in the community.
The defendant has resided in the community for many years.
The defendant has a job.
The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
The defendant has been charged with previous crimes and has always appeared as required.
The court may also allow release upon conditions, including that you check in periodically with a Pre-Trial Release program.

Knowing when an arrest is legal

Learn when the police are permitted to make an arrest — and how to tell if an arrest has actually taken place.

An arrest occurs when police officers take a suspect into custody. An arrest is complete the moment the suspect is no longer free to walk away from the arresting police officer. The U.S. Constitution’s Fourth Amendment authorizes arrests only if the police have “probable cause” to believe that a crime was committed and that the suspect did it.

The probable cause requirement restrains the power of the police to deprive people of liberty. It prevents the random roundup of “undesirables” that sometimes occurs in other countries. Some principles of probable cause are well settled:

To establish probable cause, police officers must be able to point to objective factual circumstances that lead them to believe that a suspect committed a crime. A police officer can’t establish probable cause by saying something like, “I just had a hunch that the defendant was a burglar.”
Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that enough factual information to constitute probable cause exists. But if a judge examines that same information and disagrees, then probable cause does not exist — or did not exist, if the question is being decided after the arrest occurred.
Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid if it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.
These principles leave open the most important issue concerning probable cause: How much information do police officers need to convince a judge to issue an arrest warrant or to justify a warrantless arrest? In general, probable cause requires more than a “mere suspicion” that a suspect committed a crime, but not so much information that it proves a suspect guilty beyond a reasonable doubt. In the abstract, a firm definition of probable cause is impossible. The Fourth Amendment doesn’t provide a definition, so it’s up to judges to interpret the meaning of probable cause on a case-by-case basis, taking into account:

what the judge thinks the Fourth Amendment’s drafters meant by the term probable cause
previous judges’ interpretations in similar fact situations, and
the judge’s views about police rights v. defendants’ rights.
Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.

Police questioning after arrest

What really happens if the police fail to read a suspect his rights or use coercion to extract information from a suspect.

Many people believe that if they are arrested and not “read their rights,” they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, they can’t use anything the suspect says as evidence against the suspect at trial.

Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona) a defendant’s rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:

You have the right to remain silent.
If you do say anything, what you say can be used against you in a court of law.
You have the right to consult with a lawyer and have that lawyer present during any questioning.
If you cannot afford a lawyer, one will be appointed for you if you so desire.
If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn’t matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect’s answers as evidence at trial. If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.

Consequences of failure to provide miranda warning

As mentioned, without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without the suspect’s statements.

When police come down too hard

Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. The days of the rubber hose, protracted grilling under bright lights and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the prosecutor cannot use the information at trial. In addition, under the rule known as “the fruit of the poisonous tree,” any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Police questioning prior to arrest

If you haven’t been arrested, but a police officer wants to question you about a crime, what should you do? Here are some tips.

Refusing to answer a police officer’s questions is not a crime. Of course, people often voluntarily assist the police by supplying information that might help the police make an arrest. But the Fifth Amendment to the U.S. Constitution guarantees the “right of silence.” A police officer generally cannot arrest a person simply for failure to respond to questions. This means that unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop and frisk,” a person approached by the police officer has the legal right to walk away. But the fact that there may be a legal right to walk away doesn’t mean this is a wise move. This is because there is no real way to tell what information the officer is using as a basis for his or her actions. In fact, the officer may have information that gives him or her a valid legal basis to make an arrest or to conduct a “stop and frisk,” even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview.

Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question might be, “Officer, I’m in a hurry, and I’d prefer not to talk to you right now. You won’t try to stop me from leaving, right?” If the officer replies that the person is not free to leave, the person should remain at the scene and leave the question of whether the detention is correct to the courts at a later time.

Even though, as a general rule, a person doesn’t have to respond to a police officer’s questions, this may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is a problem only if the officer has also observed the person loitering.

Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. Traffic offenses such as speeding and unsafe lane changes are generally classified as “infractions,” for which drivers are given citations in lieu of arrest. However, an officer has the right to demand personal identification — usually a driver’s license and the vehicle registration. A driver’s refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.

Miranda warnings and pre-arrest questioning

People are often surprised to learn that if a person hasn’t yet been arrested, the police may question the person and use the answers in court without first providing the familiar “Miranda warning” that advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers. In fact, the Miranda warning is required only if the person being questioned is in custody.

Deciding whether to answer pre-arrest questions

Whether or not to respond to police questioning generally depends on the person’s possible relationship to criminal activity, the person’s views of his or her civic responsibilities, and the person’s past experiences with the police. If, however, the questioning involves events that may result in criminal charges against the person being questioned, the almost universal advice of defense attorneys is to keep the old mouth tightly shut. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt. The right to not incriminate oneself guaranteed by the Fifth Amendment to the U.S. Constitution is especially powerful in this situation. A person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.

The right of the police to conduct a stop and frisk

A police officer may stop a person in order to question them if the officer has a “reasonable suspicion” that the person is engaged in criminal activity. And for self-protection, the officer can at the same time carry out a limited pat-down search for weapons (a “frisk”).

In two cases decided in the 2000 term, the U.S. Supreme Court interpreted the “stop and frisk” rule. In one case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant. In another case the Court ruled that an anonymous tip that a suspect might be armed was insufficient justification for the police to conduct stop and frisk, absent other facts demonstrating the reliability of the tip. (Florida v. J.L, No. 98-1993 (March 28, 2000). )

How a frisk becomes a legal search — and possibly an arrest

When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person’s clothing. The lesson here is that a frisk often leads to a search. And if a search produces an illegal substance, it may result in an arrest.

Search warrants: what they are and when they’re necessary

Learn when police officers must obtain a warrant before they search your home or other property.

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of “the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.,” and direct the police to search for and seize “cash, betting slips, record books and every other means used in connection with placing bets on horses.”

Police officers obtain warrants by convincing a judge or magistrate that they have “probable cause” to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called “affidavits,” which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What is probable cause?

The Fourth Amendment doesn’t define “probable cause.” Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer’s subjective beliefs. The affidavits also have to establish more than a “suspicion” that criminal activity is afoot, but do not have to show “proof beyond a reasonable doubt.”

The information in the affidavit need not be in a form that would make it admissible at trial. However, the circumstances set forth in the affidavit as a whole should demonstrate the reliability of the information. In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
an informant who implicates herself as well as the suspect
an informant whose information appears to be correct after at least partial verification by the police
a victim of a crime related to the search
a witness to the crime related to the search
another police officer
Sometimes the police provide mistaken information in the affidavit and the judge or magistrate issues a warrant under circumstances that, given the true state of affairs, would not justify a search under the Fourth Amendment. The question then arises as to whether the search itself is legal. In most situations the search will be upheld if the police acted in good faith when seeking the warrant (that is, they didn’t know about the mistakes in the affidavit). The reasoning here is that:

It makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake it should not be grounds to exclude evidence.

What police can search for and seize under a warrant

The police can search only the place described in a warrant, and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person unless they have independent probable cause to search other persons who happen to be present at the scene of a search. However, if an officer has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can question the onlooker and, if necessary for the officer’s safety, conduct a frisk for weapons.

Technically, a person may require the police to produce a warrant before admitting them into his or her home for a search. However, people sometimes run into trouble when they “stand on their rights” in this way. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter without a warrant, a person should not risk injury or a separate charge of “interfering with a police officer.” Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer’s actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

When search warrants aren’t required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn’t apply at all.

Consent searches

If the person in control of the premises to be searched freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. To constitute a valid consent to search, the consent must be given “freely and voluntarily.” If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses. Sometimes people who are intimidated by the police misinterpret the “request” to be a command and will allow the search. However, so long as an officer does not engage in threatening behavior — such as placing their hand on a sidearm — judges will not set aside otherwise genuine consents.

Many disputes about consent have to do with who has the right to consent. For example, do parents have a right to consent to a search of their children’s rooms? As a general rule, an adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee’s work area, such as a desk and machinery, but not to clearly private areas such as an employee’s clothes locker.

A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don’t.

The plain view doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is “in plain view” if the officer is where he or she has a right to be when the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, the plain view doctrine applies and a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search made in connection with an arrest

Police officers do not need a warrant to make a search “incident to an arrest.” After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person’s surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.
To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant’s immediate control. For example, an arresting officer may search not only a suspect’s clothes, but also the suspect’s wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant’s immediate control, an officer would have to obtain a warrant. However, the police may make what’s known as a “protective sweep” following an arrest. When making a protective sweep, police officers can walk through a residence and make a “cursory visual inspection” of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.

Searches of cars and their occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. The reasons why no warrant is required for a car search are:

cars are easily moved and may disappear while a warrant is being sought, and
people driving cars do not have the same expectation of privacy in cars as they do in their homes.
If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction — since routine traffic stops are not arrests that would justify a “search incident to an arrest” — the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can “frisk” the occupants for weapons so long as they have a “reasonable suspicion” that the occupants are involved in criminal activity beyond the traffic violation and are reasonably concerned for their safety.

The police are sometimes accused of using technical traffic violations as a pretext for stopping the car for the real reason of conducting a further investigation that often includes a frisk and possible search of the vehicle. Whatever the police officer’s motives, however, if the officer had a valid reason to stop the vehicle, even one like a broken rear taillight, the stop is legal. And, if the initial stop is valid, any lawful frisk, search or arrest that follows the stop is also valid.

The emergency exception

As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:

An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
Following a street drug arrest, an officer enters the house after the suspect shouts into the house, “Eddie, quick, flush our stash down the toilet.” The officer arrests Eddie and seizes the stash.
A police officer on routine patrol hears shouts and screams coming from a residence, rushes in and arrests a suspect for spousal abuse.
In these types of emergency situations, an officer’s duty to protect people and preserve evidence outweighs the warrant requirement.

If a judge decides that an officer had time to obtain a search warrant without risking injury to people or the loss of evidence, the judge should refuse to allow into evidence whatever was seized in the course of the warrantless search. Judges always have the final word on whether police officers should have obtained warrants.

Other searches that may be made without a warrant

The police may search a person’s trash put out for collection without a warrant on the ground that, since the trash has been put out in public, there is no longer a reasonable expectation of privacy and the Fourth Amendment doesn’t apply.

A backyard may also be searched without a warrant if members of the public can see into it from where they have a right to be. Again, there is no reasonable expectation of privacy in an area that is open to public view. Similarly, fields around a house in a rural area are subject to a warrantless search as long as the police didn’t trespass to obtain the information leading to probable cause for the search.

School lockers are subject to warrantless searches as long the school officials have a reasonable basis for conducting the search.