Your Home Is Your Castle

St. Augustine criminal defense attorneys explain the exceptions to the warrant requirement for police search and seizure.

Everyone knows that the police cannot force their way into your home, or search your body, or take your property without a search warrant. Right? In most cases, that is right. There are, however, a number of exceptions to the warrant requirement. In this post, our St. Augustine criminal defense attorneys will explain the scope of those exceptions to help you better understand and assert your rights.

The General Rule

When the government searches or seizes a place or item in which a person has a reasonable expectation of privacy – such as your home, or your car, or your body – the Fourth Amendment to the United States Constitution requires that the search and/or seizure be “reasonable.” This usually means that a warrant must be obtained by the police in advance. The warrant must be specific and must be based on probable cause that evidence of a crime or contraband will be found. Over time, however, numerous exceptions have been carved out of the Fourth Amendment, allowing the police to act without a warrant.

The Exceptions


The police may search a person, place or item without a warrant when a person with authority to consent voluntarily consents to the search. To be valid, consent must be truly voluntary and not the result of pressure or scare tactics by the police.

Exigent Circumstances

A warrantless search may be justified by “exigent circumstances” or an emergency situation. If the circumstances are such that getting a warrant beforehand would be impractical (because, for example, evidence would be destroyed), a warrantless search may be considered reasonable. There is no clear-cut rule to determine if a warrantless search will be justified under the exigent circumstances exception. The courts consider factors such as evidence of probable cause, the seriousness of the offense, the likelihood of immediate harm to persons or property, the immediate destruction of evidence, or the potential escape of a criminal suspect.

Plain View

The plain view exception allows the police to seize evidence of a crime and/or contraband that is discovered in plain view while the police are lawfully present in a particular place. This could be, for example, drug paraphernalia observed in plain view on the floor of the passenger seat during a lawful traffic stop.

Search Incident to Lawful Arrest

Police may perform a warrantless search of an arrested person and the area within the arrested person’s immediate control to ensure the officers’ safety and to guard against the potential destruction of evidence. Furthermore, a valid arrest warrant carries with it the limited authority to enter a house if there is a reasonable suspicion that the suspect is within. If the suspect is found inside and arrested, the police may then perform a ‘protective sweep” to ensure the officers’ safety. While doing the “protective sweep” any evidence of a crime found may be seized without a search warrant. (The plain view exception also might come into play in this situation.)

Automobile Exception

Because of a car’s mobility and the lower expectation of privacy you have in your vehicle, search warrants are not required to search automobiles if police have probable cause to believe an automobile contains evidence of a crime or contraband. Although this is known as the “automobile exception,” it is not limited to automobiles. It also applies to boats and motor homes which are actually mobile. This is a broad exception, but the scope of the search must be limited to areas of the automobile, boat, or motor home which might actually contain evidence of the crime suspected. For example, if the police have probable cause to believe that a boat is being used for human trafficking, they may search places in the boat that a human being might be found but not, for instance, inside a tackle box.

Stop and Frisk

If the police have a reasonable suspicion that an individual has committed or is about to commit a crime, the police may perform a brief, non-intrusive stop of that individual. If the police reasonably suspect that the individual is armed and dangerous, they may conduct a frisk and pat-down of the suspect’s outer clothing.

Other Exceptions

Other exceptions also exist. Depending on the circumstances, a search without a warrant may be reasonable in the context of:

  • Public school searches
  • Searches of public employees
  • Searches of a probationer’s home
  • Drug tests
  • Administrative searches (TSA, border searches)
  • Electronic searches and seizures (laptops, cell phones, email, social media accounts)

Contact Us

If you think your rights may have been violated in connection with a police search and seizure, call or email us today. Depending on the facts of your case, our experienced St. Augustine criminal defense attorneys may be able to have the evidence derived from that police action tossed out.


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