What are Exceptions to a Warrantless Search?
One of the exceptions that allow law enforcement to search your person, your vehicle, or your home without a warrant, without probable cause, is consent. Consent is an exception to not having probable cause. It is an exception to not having a search warrant. It allows law enforcement to conduct a search, even if they have no basis for the search.
What does that mean? For example, if you’re seated in your car at the beach and in your car, or in your trunk, is a kilo of cocaine, and law enforcement walks up to your car and asks you this question: “Sir or ma’am. Do you mind if we search your car? Specifically, do you mind if we search and look in your trunk? And you give them consent—which means: Go ahead. I have no problem. Be my guest. That allows them to search your car, even if they do not ask permission of a Judge, establish probable cause, or do not possess a search warrant. So, if you consent to the search, that gives law enforcement legal authority to search your vehicle, search your person, or search your home.
Another example law enforcement use is called a “knock and talk.” That means law enforcement will come to your home, they will knock on your door, and they will ask for your permission to search your home. If you consent, and consent can be given in one of two ways—orally or written, many times law enforcement will ask you to sign a document that gives your consent for them to search your home. Once you give them consent to search your home, they can come in, search wherever they want, seize whatever they want, and, if they connect you to those seized items and those items are illegal, arrest you for possession of those items. That means even if they did not possess a search warrant, even if they did not have probable cause, even if there was no way legally for them to get into your home—if you give them consent for the search, that gives law enforcement authority to come into your home.
Now, once law enforcement is in your home, you do have the ability to reject and withdraw your consent. That means if you have invited them into your home for a search and prior—not after, prior—to them finding anything illegal, you can withdraw your consent and explain to them do not want to give them consent to search your home—anything found after that cannot be used against you, but that’s kind of tricky. Generally, once consent is given, the search begins, and if anything is found and the police can connect you to that illegal substance you can be put under arrest for possession of that item. So, summed up, probable cause or search warrant is generally required by law enforcement is generally required to justify a legal search; however the gold card, the one thing always allow law enforcement to search your person, property, or home, an exception to a warrantless search and seizure is you giving them consent. If you consent to a search, it allows law enforcement to do so with full authority and lawfully.
Kevin Hayslett, Esq.
J. Kevin Hayslettis an attorney practicing in the areas of Criminal Defense and DUI Defense from the Clearwater office and Hillsborough office. Kevin is an avid tennis player and is currently nationally rated in singles and doubles. You can follow Kevin onGoogle+, oron Radio IO on his show, "Kevin's Law". Kevin can also be heard on the Sirius Satellite Radio show during the "Ask the Lawyer" segment, which can be heard the first Thursday of every month.