Short answer: Do nothing, unless they have a warrant.

The 4th Amendment prohibits unreasonable search and seizures by the government.  Thus, police (or any law enforcement agency), must have a search or arrest warrant to enter your dwelling without your consent.  There are a few exceptions that I will explain below, but they are only exceptions to the general rule.

If they knock on your door, ask you to open up, want to chat with you (the ole “knock and talk”), anything along those lines, without a warrant, are just ways to get you to incriminate yourself.  You have no duty to talk to law enforcement and this includes allowing them to enter your home without your permission. You can simply say no, go away, have a nice day or just remain silent and ignore them.

Now, there are exceptions to this general rule.  The major ones are warrants.  If the police have a search or an arrest warrant, they may be able to enter your property without your consent.  The scope of these warrants must be spelled out in the warrant itself, however, and that may be a limitation on law enforcement.

If the police have an arrest warrant, they can enter your property without your consent if they have a reasonable belief that the person they are seeking to arrest is located there.  This might mean that they cannot enter a guest house, a garage, other locations where it would be unreasonable for them to believe the suspect is located, etc.

If the police have a search warrant, the warrant has to specify what law enforcement is able to search.  If the warrant says they can search the garage, they can’t go into the house, and so forth.  However, most search warrants can be very broad and oftentimes include all rooms and areas on a property, so I would expect that most of the property would be included if the cops show up to your house with a warrant.

Also, keep in mind that a search warrant is different than an arrest warrant in that, in many instances, law enforcement shows up to execute a search warrant and ends up not arresting anyone.

There are some key exceptions to law enforcement being required to have a search warrant to enter your property and will discuss these below.

1. Search Incident to Lawful Arrest

When a law enforcement officer makes a lawful arrest, the officer may search both the person arrested and the area within the person’s immediate control. This exception is made for “officer safety and the preservation of evidence.”  The scope of the area “within the person’s immediate control” that an officer may search is always being litigated and is subject to constant fights among defense attorneys and prosecutors.

2. Items in Plain View

An officer may seize items that are in plain view as long as the officer has a legal right to be there. For example, if an officer stops a person for speeding and when issuing a ticket to the driver the officer sees, in plain view, drugs in the backseat of the car, the officer can seize the suspected drugs without a warrant. Or, for example, an officer knocks on a door, someone opens up and they see something illegal sitting on the table, they would be allowed to go in and seize that item and, possibly, make an arrest.  Officers may even enhance their vision with the use of flashlights or binoculars, but they may not illegally enter premises and then claim the plain view exception.

3. Consent

If a person consents to a search and the officer reasonably believes that person has the authority to consent to the search, no warrant is needed. The person consenting must have or reasonably appear to have authority to consent. For example, a parent can consent to a search of her minor child’s room. However, a minor child cannot validly consent to the search of her parent’s house. In addition, the consent must be voluntary and not the product of threats or undue promises. Consent searches can apply to both individuals and property.

4. Stop-and-Frisk

If police have reasonable suspicion of a person committing, just committed or is about to commit, a crime, they may both stop a person to ask questions and conduct a brief pat-down search of the person to ensure officer safety. These Terry stops (named after the famous Supreme Court case) are sometimes a source of friction between the police and communities where stop-and-frisk is employed more aggressively.

5. Automobile Exception

In establishing the vehicle warrant exception the Supreme Court reasoned that the inherent mobility of automobiles would make it impractical for officers to always obtain a warrant prior to a search.  The Court explained that people have a lesser expectation of privacy in their vehicles. Based on this reasoning, a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances, or other forms illegal evidence.

6. Hot Pursuit and Exigent Circumstances

If the police are pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant. Exigent circumstances are circumstances that require immediate action. For example, the police can forgo obtaining a warrant in an emergency in order to render aid to a person who needs it, to ensure public safety, or to preserve evidence that is in immediate danger of being removed or destroyed.

 

In conclusion

The idea to write this blog came from a call that I got last night, around 9:17pm.  Someone found me online and called me saying the cops were at his house, knocking on the door and asking him to open it.  He said that they were investigating a burglary, or something along those lines, and had “questions” for him.  I asked him if they had a warrant, he said no, and I told him that you have no obligation to open that door or communicate at all with them, and that he probably shouldn’t either.  If they arrest you or break down your door, cooperate, be polite, don’t say anything and then call a lawyer.

You need to know your rights and you need to enforce your rights.  It is crucial that you contact a skilled criminal defense attorney if you’ve been arrested or are being investigated for a crime and have that lawyer navigate that journey with you.  Don’t try it on your own!