I Have Two Questions About the Law When It Comes to Searches?
Question by ImAtheist: I have two questions about the law when it comes to searches?
None of this applies to me I just have become very interested in law because I think we are often abused and I just like to be prepared. But anyway question #1: If an officer approaches your home I understand they cannot enter your home without a warrant or consent. And I know that probable cause is also not good enough for an officer to enter a home. But can an officer enter your home without a warrant if there are illegal items in “plain view”? Like maybe if they see something through a window, like a pipe or something.
Question #2: Lets say you are stopped for a traffic violation and the officer asks to search your vehicle to and you refuse. And then the officer says he smells weed and now can search you vehicle for probable cause. And then he finds an open can of alcohol and arrests you but there is no weed whatsoever found or located in the vehicle. Can you get your lawyer to dismiss this evidence under the 4th amendment due to the fact that it would be impossible for the officer to smell a substance that was not present in your vehicle?
No I am not asking if the police are honest. I already know they are not I am asking something entirely different.
@ rusty, screaming and gunshots is not probable cause, they can enter your house if it is an EMERGENCY which both of those things would be an emergency. I am talking about minor things like seeing a pipe.
Best answer:
Answer by Harley Drive
you are basically asking if the police are honest – they used to be ( in the main) but less so today
Answer by Rusty Plastic
Question #1: I don’t know where you get the idea probable cause isn’t sufficient for a police officer to enter your house. If the police officer was outside the house and heard screaming or shots fired, then they would have probable cause to enter the house and could enter it.
If they can see something illegal in your house from outside of it, then they have actual cause to enter it, and can without a warrant.
Question #2: Lots of things smell like other things. Also, if marijuana was smoked in the vehicle then the smell can linger in the fabric for a long time without there having to be any marijuana present. So the police officer isn’t necessarily incorrect if he said he smelled weed. You can attempt to claim an unlawful search and seizure due to the substance he stated he smelled not being present, but you might not get the charges for your open container of liquor dismissed unless you can prove there was no way he could have smelled marijuana or anything similar to it.
edit: You are so wrong. Lots of things can make the sound of a discharged firearm other than a firearm discharging, and a person can scream for reasons other than their life being endangered, so simply hearing either of those constitutes probable cause only. If the police see someone enter the house with a firearm or know that someone in the house has a firearm, or they have suspicion someone in the house might be in danger, then hearing gunshots and/or screaming constitutes more than probable cause for entering the house, but simply hearing them with nothing else to back it up is only probable cause.
And I know what you are asking, I was simply pointing out your mistake concerning probable cause not being sufficient grounds to legally search without a warrant.
As previously stated, if they can see something illegal in your house from outside it, then they have actual cause to legally enter it. So, if that pipe you mention is illegal for you to have, then they could legally enter your house upon seeing it.
Question 1: Actually, an officer may enter your house without a warrant and without your permission if they feel someone in your home is in imminent danger and/or they are chasing someone who is suspected of committing a crime and they see them entering your home. They can also enter your home to search if they feel they have probable cause. They have to prove probable cause in court so most officers would use the probable cause to get a search warrant. They can observe the house and prevent anything from being taken out of the house while they wait for the warrant and in some cases, they can enter the house before the warrant gets there if they feel evidence is being destroyed.
If an officer is called to your home because of a loud party (or other such reason) and they are invited into the house by whoever opens the door, anything they see is admissible in court. Also, anything they see through the open door is subject to seizure and arrest. For instance, if the person who opens the door has an open container and they are obviously under age, the cop now has probable cause to enter the house. A crime is being committed, the officer has a legal reason to be there in a place to observe the crime (the loud party complaint) and the door was opened by someone who has access or was inside the home.
If a cop has reason to see into your home or reason to enter your home and sees something in the open that is illegal, then he has a right to ‘search’ at that point. He can’t usually open doors or drawers without a warrant even then, but there is already something illegal visible. Anyone in the house can now be detained and a warrant can be requested. Once they have a warrant they can search to the extent of the warrant.
Question 2: The officer has to have stopped the car for a legitimate reason. Not too difficult. Having not received permission to search, he says that he smells marijuana. At this point he is claiming that he has probable cause to search the car. You cannot prevent the search. You can restate that you do not give your permission to search the car. You cannot stop the search.
In court, the officer is going to have to prove that he had legal reason to stop the car, that he had probable cause to search the car before any of the evidence he found on the search can be used in court. Finding an open container but no evidence of drug use will seem suspicious to the judge, but obviously a crime has been committed so the judge may choose to allow the evidence. It will be up to your lawyer to argue the case, but the judge has the final call.
If a cop stops you and sees something through the windows, like a pipe or open container, he can then use that knowledge to search the car whether you give permission or not.