Do the Police have a legal right to enter?
Police entering the homes and apartments of Memphis’ residents, especially the city’s college students, has been a growing hot topic. It is not only timely, but important to prudently discuss the state of Tennessee’s laws that detail when police officers have the legal right to enter your home and also provide essential information oriented towards the rights we all have in terms of granting or denying permission to enter.
First and foremost, it’s important to mention the Fourth Amendment is the cornerstone behind the laws about governmental search, which includes homes, dwellings and vehicles. To put it rather simply, the Fourth Amendment gives all people the right to be secure in their homes and bodies against any kind of unreasonable seizures or searches, and this right can’t be violated unless law officers utilize a warrant that’s based upon probable cause. This may seem pretty straightforward in that police can’t enter your home without a warrant or probable cause. This is fundamentally true, but there are also many exceptions within the Fourth Amendment that police officers consistently utilize in order to legally establish probable cause, which everyone needs to know about.
What this article aims to do is give you a few legal tips to keep in mind when you get in a situation in which the police ask to search your home, the legal exceptions to the Fourth Amendment, tactics police officers use in these situations and what you can do to prevent unreasonable searches of your home.
‘Knock and Talk’ Investigations
The first thing that everyone needs to fully understand is the concept of a knock and talk which police officers will routinely conduct. This entails knocking on a home’s door and wanting to speak with the resident or whomever ends up being the one who answers the door. In these situations, the police may ask to gain entry into the apartment/home by getting provided consent from the person they’re speaking to. At the same time, they’ll take this opportunity to look inside and around the residence to see if there can be anything that could give them probable cause to come into your home.
You DO NOT have to give consent in these situations and can politely refuse their requests in these situations because in knock and talk investigations, the police may still be investigating to find some kind of probable cause to enter your home.
Determining the Reason They’re There
Being polite to the police goes A VERY LONG WAY. When the police come to your door your must very respectfully ask, ‘How can I help you?’ and get an idea as to why they’ve arrived at your home.
Many times, the police will be at your door for something that has nothing to do with you. An example being, they are looking for more information about a crime that was committed in your neighborhood, or they are responding to a noise complaint. If they are there because of a noise complaint, then you should simply apologize for the inconvenience and turn down your music or stop whatever it is that’s causing the noise.
Of course, there are instances in which the police are interested in investigating you or what’s happening in your home and ask for your consent for entry. These situations are more complex, and you should contact a lawyer as soon as you can in these instances.
The following section helps you navigate your options in the moment while in these types of situations.
What You Should Know About Your Rights
This section is going to give you quite a bit of information about your rights as a citizen in the situation that the police want to search your home. It’s also important that in all of these moments you MUST REMAIN RESPECTFUL AND NOT BE AGGRESSIVE. When it comes to the law, there is no doubt that you can verbally reject a police officer’s request and ask your own questions, but as many of us know, police officers like to get their way and can even work beyond their scope of authority without proper authorization at times.
In the end, if the police simply decides to enter your home without your permission or a warrant, then you should never physically attempt to stop them. This will work out horribly in the long run and is better worked out with the help of an experienced lawyer in the court system.
With these cardinal rules of respect in mind, here are some imperative rights you need to keep in mind when the police are at your door.
A warrant is almost always needed to search your home.
This goes back to the Fourth Amendment, and the concept of police searches being reasonable. What’s essential about this is if a police search is found to be unreasonable in court, then all of the evidence gathered during the search is deemed illegally acquired and cannot be used in any criminal case.
Consent is the big clincher and the most obvious exception to the Fourth Amendment and the necessity of a warrant to enter and search your home. The Fourth Amendment really is a reminder to law officers that they can’t burst into someone’s home without a judge’s permission, unless there is an emergency or they have probable cause to initiate a search.
Probable cause is what the police will almost always use as their legal reasoning to be able to enter your home without a warrant, and anything that an officer hears, sees or smells can be used as fair game for their judgment towards whether there is probable cause to initiate the search of a home.
Even if you have absolutely nothing to hide, you should remember there’s also nothing to gain from a search of your home. If you are in proper legal standing to deny a search request you should always do so.
Being inside your home is the best protection towards unreasonable intrusions.
Your right to be secure in your home is protected by the Fourth Amendment, and the police do not have the right to invade this privacy without a warrant, or probable cause. When the police are at your door and want to speak with you, there are no legal ramifications for staying inside your home if you don’t commit obstruction of justice.
If you are not concerned with your privacy and don’t mind speaking face-to-face with the police, you can always open your door, but you should always close your door behind you, which we’ll discuss further in the exceptions section later pertaining to the plain view doctrine.
You don’t have to open the door when there is no warrant.
Unless there is an emergency or the police have a warrant, you are not in the legal position to have to open the door for the police. You also aren’t required to even talk to them or answer any questions, and it’s important to understand that if a police officer is asking for your consent to search your home it’s because they don’t have enough evidence for a warrant and don’t have probable cause.
The best thing to do when police are at your door is to very calmly and respectfully not give your consent for a search unless a warrant is provided and to not answer any questions until you’ve consulted with an attorney.
You can say no to the cops.
It’s at times a little bit scary to do so, because as we’ve said police officers tend to not like it when a citizen refuses their request, and many times a search refusal will be responded with subtle threats like, ‘You don’t want to be arrested, do you?’
In the long run, the police want your consent so they don’t have to go through the time and effort to obtain a search warrant, but that’s not your problem. Some people will act differently and let the cops do anything they want in their homes because they have nothing to hide, but by letting a police officer into your home you also have nothing to gain as well.
When can police legally search your home without a warrant?
The first thing to consider here is that if the police do not have a reasonable expectation to give you privacy and they also do not have probable cause, then they are going to require a search warrant to enter your home. But that’s not how reality works, and there are many exceptions to needing a warrant for the police to justify probable cause.
It can be just about anything, so it’s important to stay smart in terms of not providing any loopholes for the police to proclaim they have probable cause. The following are the main exceptions to the Fourth Amendment and ways in which the police can search your home without warrant.
This is the most obvious exception, and many times people simply don’t know that they have the right to refuse searches, which can lead them into unnecessary legal trouble.
There are some rules with consent that everyone needs to know, though. Some of these restrictions include the fact that a tenant of an apartment/home can give consent for the police to search the common areas of the home, but cannot give consent to search areas that are owned by other tenants. Also, a landlord cannot give the police consent to search their tenants’ private belongings, but an employer can give consent to the police for them to search an employee’s work area.
Plan View Doctrine
Police can search a house and seize any evidence that is clearly visible, so if the police see something illegal outside of your house they can then perform a search of your home without a warrant. It’s also important to know that the cops must have probable cause to believe that what they see in or outside your home is in fact illegal.
Search in Connection to Arrest
There is no need for a warrant to conduct a search when you are arrested of a crime, so if you do get arrested for something like possession of drugs the cops can then search for any other additional drugs or illegal activity in your home or car to find any additional evidence against you.
The police also conduct what is called protective sweeps when they feel there may be dangerous accomplices hiding inside a specific location. Anything that’s located in plain view can also be seized during the sweep.
There are times when the police can search your home without a warrant if they feel as though the time to get a warrant would jeopardize public safety, or lead to the loss of any evidence. An example of this is that they can forcibly enter a home without a warrant if they have probable cause to believe that the destruction of the evidence was happening.
This also applies when a suspect is trying to escape them or if someone is being injured. These exigent circumstances exist so the police officer’s duty to arrest a suspect, protect someone and preserve evidence can outweigh the requirement of having a search warrant.
Knowing Your Rights…
Now that you’ve read through the information on this page you should have a better understanding of the different options you have when the police show up at your doorstep and say they’d like to look around your home.
The truth is that you have the legal right to refuse this kind of request, but by refusing you can put yourself at risk of injury or being arrested for interfering with an investigation.
Although it’s always a pretty scary situation you now know that you aren’t required to give consent when police ask for entry to your home. The best thing to do in any situation when the police are at your door is to ask them for their identification and have them clearly explain to you why they are at your home. Their explanation for being at your home is always one of the most crucial pieces of information you’ll need, but don’t be tricked by subtle threats into giving your consent.
Remember, if they don’t have probable cause that may be why they are asking for your consent, and you never have to give up your rights for privacy, especially if you aren’t doing anything illegal.