Searches of homes are not as common as vehicle searches in drug cases but they do happen. An officer must obtain a search warrant for the search of the home to be legal because citizens have a presumptive right to privacy within their homes. If law enforcement search without a warrant, they must be able to articulate a serious enough threat to their safety or to the ability of the suspects to flee the premises and / or to dispose of the evidence. A warrantless entry is constitutional and legal if urgent enough (the legal term is “exigent”) circumstances exist to justify the intrusion: such as where taking the time to obtain a warrant could pose a danger to the safety of the police officers or would risk loss or destruction of evidence. It is up to the State to prove that the circumstances were urgent – not to the accused that they were not. If there is a genuine risk that the safety of police or innocent bystanders will be endangered, that suspects will flee, or that evidence will be destroyed if entry is delayed until a warrant can be obtained, then police can legally proceed with a warrantless entry.
Warrants and Urgent Circumstances
The main factors used to evaluate whether urgent circumstances exist are —
- The degree of urgency involved and amount of time necessary to obtain a warrant
- The reasonable belief that contraband is about to be destroyed or removed
- The possibility of danger to the officers guarding the site where the contraband is located while a search warrant is sought
- Information indicating the possessors of the contraband are aware the police are on their trail
- The readily available means of destroying the contraband combined with officers’ knowledge that efforts to dispose of narcotics and to flee are characteristic of those involved with drug trafficking
In evaluating urgency the Courts consider the scene and the circumstances as they would appear to a reasonable and prudent person standing in the officers’ shoes but the tendency is not to second guess the judgment of experienced police officers concerning the risks of a particular situation. If the Courts conclude that the officers’ belief that suspects would have fled was reasonable, or that officers’ belief that evidence would have been destroyed was reasonable, as based on their experience and knowledge, then it is ruled that the circumstances justified immediate action without a warrant.
An example of how this works in a real-life case is the easiest way to understand. This example of one warrantless home search that was overturned will give you an idea of how police can be lazy or presumptuous in not obtaining a warrant, feeling assured the judge will agree with them that they needed to search right then – without stopping to obtain a warrant. In this case a landlord had gone to his rent house to collect rent and was refused entry. He forced his way in and observed large bundles of marijuana. The tenant threatened the landlord with a tire iron before driving off. The landlord called police who arrived to find the front door ajar with the odor of marijuana coming from the house. Police entered the house without a warrant. Once inside they discovered several hundred pounds of marijuana in plastic bags.
This case was fought on a Motion to Suppress the Search for failure of police to secure a search warrant when they should have because, so it was argued, there were no urgent circumstances to justify an immediate, warrantless search. Police countered that they were concerned with everyone’s safety and therefore by law needed to do an immediate safety sweep of the home since before driving off the renter had threatened the landlord with a tire iron. The Court bought this argument of the police and refused to suppress the warrantless search. But it was appealed and ultimately won because the suspect was not armed based on the evidence – he used a tire iron, not a gun. And because the neighborhood was not an area known for violent drug trafficking. Further there was no evidence anyone else was even inside the house – indeed the front door had been left open suggesting a hasty retreat and no sounds were coming from inside. The time of day also lent itself to obtaining a warrant quickly – a weekday early afternoon Finally, when the police did go in they did NOT do a protective sweep with guns drawn, looking for places where accomplices might be hiding – thus giving the lie to their alleged concern for their safety if they had waited on a warrant. They just went right to the drugs.
Texas civil forfeiture laws also allow the government to seize your property, such as money or vehicles, if it has a reasonable belief that it was used to facilitate the commission of a drug crime. These are civil suits, not criminal cases, but we have helped many clients win back their property. To keep the property the government must be able to connect the property seized to the drug crime. We accept only a select number of civil seizure and forfeiture cases.
If you have been charged with a drug offense after your home was searched without a warrant, call Houston criminal defense attorney Carl Haggard (832) 328-0600 for a free confidential consultation. Carl has over 30 years of verified winning experience defending clients against unjust prosecution.
And remember – criminal defense attorneys stand between the government and injustice. The reason we can protect the innocent is because we know how to protect the guilty from an unjust prosecution.