The Fourth Amendment to the U.S. Constitution guards against unreasonable searches and seizures. What constitutes reasonableness has been the subject of many court battles, and the answer to that question depends on the nature of the search. For example, a search is reasonable when a person consents to it or when a person has no reasonable expectation of privacy (like with garbage you leave outside of your house).
Generally, the police must obtain a warrant to search your home because the law recognizes that it is reasonable to expect privacy here. Before a warrant will be issued, the police must establish probable cause – that there is a reason to believe they will find evidence of illegal activity. Next, the warrant must specify the property to be searched and the property that may be seized. However, there are circumstances where the police may conduct a warrantless search of your home. One common circumstance, as noted above, is when the homeowner gives consent.
Consenting to a Search of Your Home
It is illegal for the police to coerce, intimidate or otherwise twist your arm. In other words, consent to search must be given voluntarily, the validity of which is assessed based on the totality of the circumstances. While the circumstances will vary according to the facts of a particular case, the court should consider the veracity of the opposing arguments as well as the officer’s basis for believing consent existed.
Here are a few other points to bear in mind regarding consent to search:
- You do not have to consent to search, but if you do, you may revoke that consent at any time.
- The police are not required to tell you that you may deny consent.
- There are circumstances in which a third party may consent to a search. The consenting party must actually possess – or the searching officer must believe that the party possesses – common authority over the property.
- If two co-occupants are present (such as a husband and wife), and one party grants consent but the other denies it, the police may not conduct a warrantless search.
A revocation of consent must be clearly expressed. It is not enough to act impatient or displeased during the course of the search. If you want the officer to stop, then say so directly and politely tell him to leave. However, if the officer has developed probable cause to continue searching, you might have lost the right to revoke consent. Moreover, if you invite an officer into your home, he may seize contraband that is in plain view, whether or not you have granted consent to a search. The officer must have probable cause to believe the item is contraband or criminal evidence.
The intricacies of search and seizure law can be confusing at times. That is why it is imperative for you to have an experienced Chicago criminal defense attorney who can ensure that evidence obtained illegally will not be used against you, and that you understand your rights regarding warrantless searches and seizures. Contact us today for a consultation. We can assist those in Chicago and the surrounding area.