- When are police allowed to search your home?
- What about your car?
- What about your person?
- When can the police arrest you?
The way that the police are allowed to search you, your home, your car or arrest, you are through something called a warrant. Now, a search warrant and an arrest warrant are two fundamentally different things, but they operate on a similar basic principle. If the police don’t have a warrant, they can really only arrest you in two scenarios:
#1 – If they witness you committing a crime they can arrest you for that, or
#2 – If they have witnesses who saw you commit the crime and they believe that there is enough for probable cause, they can arrest you for that as well. After the arrest, you will get brought before a Commissioner, and the Commissioner will determine whether or not there’s actually probable cause to hold you. So that’s how police can do a warrantless arrest.
However, police can also get an arrest warrant. And the way that an arrest warrant works is that they write down what they believe it’s probable cause and they go to some judicial officer – again, that can be a District Court Commissioner or it can be a judge, and that judicial officer will review it and determine if there’s probable cause to issue an arrest warrant. Once they have that warrant, then all they need to do is find you. And if they do that, they can arrest you. They don’t need anything else. There’s also another type of warrant that gives the police the ability to arrest you, which is called a bench warrant, which is typically issued by a judge who’s on the bench, who’s actually sitting in court. And most of the time those are issued because someone didn’t show up in court. So a judge issues the warrant right there in court and then the police can arrest you if they find you.
The second type of warrants is a search warrant, and that is a lot broader than an arrest warrant. Search warrants give police broad powers to search a specific thing or person. They can include searching your home, searching your vehicle, or searching your person.
Searching your person can include taking blood samples or hair samples, fingerprints, other types of DNA. A search warrant can give the police all of these powers over you. The way that police get a a search warrant is the same way that they get an arrest warrant. They write up an affidavit, which is just a sworn statement stating the facts that they believe to be true. They go in front of a judge and say that they want search for a specific thing. Maybe they’re searching a house for guns or maybe they’re searching a car for drugs. Maybe they’re searching your person for DNA. The search warrant has to specify what is being searched and what is being searched for, and they’re not allowed to go outside the bounds of the warrant.
For example, if the police have a search warrant for your car, but your car is parked in your house or in your garage, they’re not allowed to then search your house. For example, if they have a search warrant for your person to get DNA from you – that doesn’t mean that they’re allowed to go search your car.
Also, if the police are searching for something relatively large (maybe they think a safe has been stolen and they’re searching for a safe), they can’t go search anywhere that the object they are looking for couldn’t be stored. So anything that they look for has to be reasonably connected to what they’re searching for.
Still, a search warrant is very broad, and if, for example, the police have a search warrant to search your home for drugs, they’re probably also going to find any illegal guns that you happen to have there. And that would be a valid thing for them to find as part of that search warrant, even though it’s not something that they are explicitly looking for.
In order to get any kind of warrant, the police need probable cause. Probable cause is a legal standard of proof – albeit a relatively low one. The police have to believe that something is probable and a judicial officer has to agree. So it doesn’t even have to be likely just probable. As you can imagine, warrants search and arrest warrants give police a lot of power because a judicial officer has already signed off on what they’re allowed to do, so they don’t need to exercise anymore discretion at that point.
No one’s going to come back and review this later, and if someone does come back and review it later, a lot of deference is given to the judicial officer that issued the warrant in the first place.
You Are Entitled to an Attorney
In conclusion, if you believe that there is an arrest warrant out there or you’re being confronted by an officer with a search warrant, it’s in your best interest to call an attorney. You’re entitled to have an attorney with you. You’re entitled to have an attorney through every step of the process. So, if you’re encountering police and they’ve got a warrant, you should reach out to an attorney as soon as you can.
For more than 30 years, we have been helping clients in Germantown, Clarksburg, and throughout Montgomery, Frederick, and the surrounding counties. If you have been charged with a crime, contact us for a free, no-obligation consultation.