suhrelaw | November 30, 2016 | Criminal Law
At some point in grade school, we all learned about the Constitution and the Bill of Rights. We learned about the freedom of speech, religion, and the right to vote. However, it seems that there are some police officers that struggle with the protection that the 4th Amendment offers.
The plain text of the 4th Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is the protection from “intrusion upon seclusion.”Simply but, it protects you from a police search, seizure, or arrest without a warrant. And prevents a warrant from being issued without probable cause.
The most sacred place a person has is their own home. The Supreme Court of the United States has held time and time again that searches and seizures inside the home without a warrant are presumptively unreasonable. The Court stated that “It would be difficult to overstate the degree to which courts have extended Fourth Amendment protections to the sanctity of the home.” And that makes sense! Because it is your home. The police should not be able to enter, seize, or arrest you or search anything from your home without a warrant.
Now, in reality, is this right upheld by all police officers? No. There are some well trained, respectful, and wonderful law enforcement officers that take the laws surrounding search and seizure seriously. I commend these officers, and appreciate their efforts to serve and protect within the bounds of the constitution. However, there are those police officers with an agenda. Police officers who have a target on a certain individual and will cut corners or bend rules to try to make an arrest. Police officers who try to have the end justify the means and work backwards in total disregard for the constitutional protections. I am currently working on several cases where this is the issue. Police officers who just blatantly disregard my client’s 4th amendment rights.
For the purpose of this article, I will focus on the home. If a police officer comes to your door without a warrant, you do not have to answer. Now, police officers commonly do what is called a “knock and talk.”This happens all the time. They show up at your house, knock on the door, and try to ask you some questions to get some information out of you. That is not unconstitutional. A police officer, like anyone, is welcome to approach you and engage in conversation with you if you are willing to comply. If not, then they should leave if they do not have a warrant.
Problems arise when the Police Officer has a hard time accepting “no” for an answer. If a police officer shows up at your house without a warrant, and you tell them you do not wish to speak to them. At that point, the officer should leave and get a warrant if possible. They should not remain on your property, prevent you from closing your door, try to force entry into your home, or try to arrest you while you are in your home. This is going too far.
The police should not enter your home, search your person, or search your property without a warrant. There are some exceptions to this general rule: For example, if you are suspected to have committed a crime of violence, theft, or if there are exigent circumstances that make entering the home allowable (fire, crying children, medical emergency, etc.). Or, if the police officer saw you commit the crime, he does not need a warrant. However, if none of the exceptions apply, if you say “no,” the police officer should let you close the door and proceed to get a search warrant or continue to investigate the case. “No thank you” is legally an acceptable answer, whether the police officer wants to accept it or not.
If the police officer tells you to step outside of your home, and you do, you may have waived the protection your home offers. At that point, the court may see the action of stepping outside your home as consent and an action to make yourself available to the police officer, and ultimately subjecting yourself to a possible arrest. The fourth amendment protects you while you are inside your home. If the police officer does not have a warrant, and wants to speak to you, you can politely say, “no thank you” and close the door.
Some courts have held that just by opening the door, you are consenting to search or arrest by the police officer. This is not the majority view in Ohio, but there are some courts that support this notion. Accordingly, opening the door could lead to a lawful arrest or search in those jurisdictions.
If you have been arrested at your home or if your home was searched prior to your arrest, it is important that you speak with an experienced attorney on this subject. There may be legal grounds to suppress the evidence found or the arrest itself.
Please contact Jaime Glinka at Suhre & Associates if you or someone you know has been arrested.