When it comes to searching people's homes, the police will need to satisfy certain requirements. A person's home is certainly their castle, but if the police can show that a particular person is either committing a crime in their home or there's evidence of a crime in their home, then they can get a search warrant signed by a judge and go in and search the home.

So, the question becomes, how do they show that someone is either committing a crime in their home or that there might be evidence of a crime in their home? This is where we get into the concept of probable cause. In other words, the people have to have probable cause—a reasonable suspicion—that there is some sort of criminal activity going on in a home.

A lot of times where I see this coming up is when a confidential informant gives the police information about some sort of criminal activity – for example, drug activity being conducted in a home. They were in the home. They saw the drug activity. They saw the weapons. They bought drugs inside the home. That would certainly be the start of being able to get probable cause in a home.

In that situation, the police will probably survey the home to gather more information about what's going on inside. If they saw people coming and going all the time or hand-to-hand transactions, now you're starting to get information that gives them an argument that this particular person is involved in some sort of criminal activity, and if they were able to search the home, then they would be able to find something.

Other times, what we see is that people get arrested for a crime, and the police think in their head – you know what? I bet this person has evidence related to that crime – maybe a gun or some sort of clothing in their home. But they can't just write up a search warrant and establish probable cause based on some sort of a hunch. They are going to need some reasonably articulable facts that show yes, there would be a gun in the home. Here's why. They're going to really need to spell it out in the search warrant. Otherwise, they're not going to be able to get in.

When Are Police Able To Get Into Somebody's Home Without A Search Warrant?

The way they would be able to get into someone's home without getting a search warrant is if they could establish a number of different things. One of the easiest ways to get into people's homes without a search warrant is when the person consents to them getting in the home. In other words, they say – hey, do you mind if we search your home?

Sure, go ahead. That's it. Now they can get in, and they can search everything. A lot of people get intimidated and tricked into letting the police into their homes, not realizing that they have the right to say absolutely no. You cannot come into my home. Because if they do that, then that forces the police – they're going to play fair – to go and try to get a search warrant. They might not be able to get one. They may not have reasonably articulable facts that the person is involved in some sort of crime.

Another way the police can get into somebody's home without getting a search warrant is what we call exigent circumstances. For example, let's say they're chasing somebody who just robbed a bank, and that person runs right through your home – the police are going to be able to chase him in there.

They are not going to have to get a search warrant. By that time, the person can either get rid of all of the loot or somehow get away out of a back door, so the police are going to be able to chase a fleeing felon into a home. If they see you commit a crime – let's say they're chasing you for a DUI, and now you're evading arrest, you drive right up into your driveway and run into your house. Do they have to get a warrant? No, they don't. So, difficult circumstances and emergency circumstances will allow the police to get into somebody's home without getting a search warrant.

What Is The Constitutional Protection?

The Fourth Amendment to the United States Constitution protects you and everybody in America against unreasonable searches and seizures by the police. That includes your home, your car, and your person, so anytime the police want to get into somebody's house, they're going to have to get that search warrant. Other issues surround searches of homes.

For example, they can only go to certain areas. Let's say that the warrant just says they can search the house. Does that mean they can now search for a detached garage or other detached buildings? Actually, only if it's specified in the warrant. In other words, they cannot exceed the scope of the warrant. For example, if there was a car parked, would they be able to search the car? Only if they included it in the warrant – the Magistrate reviewed everything and allowed them to search the car.

So, there are certain things that defense attorneys can argue when it comes to searching a home, but of course, it's going to depend on what they're claiming the probable cause is for the warrant and what the scope of the warrant covers. So, again, these are all issues that a criminal defense attorney is going to have to look into for you in order to be able to challenge any search of a house.

A lot of times, if you can challenge a search of a home in Los Angeles, you could then exclude the evidence that's found in the home, and most of the time, when you exclude the evidence from the home, they don't have any case left. So, that's a criminal defense attorney's best friend – that motion arguing that your client's Fourth Amendment rights were violated when they searched the home.

The warrant should never have been issued, and a judge can basically quash it by saying that, no, you didn't have probable cause to issue it. The Magistrate who issued it was wrong, and therefore, anything that was found cannot be used against a particular defendant in their criminal case.

Staleness is another issue that we use to challenge warrants in Los Angeles County. In other words, let's say they say, look, we have information. There's a shipment of drugs that's coming in the next week, and so, it's going to go into that house. They give it all to the judge, and the judge issues the warrant, and instead of executing the warrant within that week's timeframe, they wait three months to execute the warrant; at that point, the defense would have a staleness argument and say, hey, look, it's too late. They should have issued the warrant in the timeframe that they indicated. To do it three months later is ridiculous. That warrant is stale, and everything they got should be thrown out.

Can Police Hide The Source Of The Information?

Yes, there are circumstances where the police cannot give information and hide information about who is giving them the probable cause for the warrant. This usually occurs in cases where a confidential informant gives them information. They basically then seal that part of the warrant. They argue, hey judge, if we have to tell who this confidential informant is, they're going to either get seriously injured or killed because they gave the information to be able to get into the home.

So, that's an argument we make all the time. The defense will file a Hobbs Motion. Basically, that motion tells the defense who gave the information and what the information is because it really puts the defense in a bad position.

You're sitting there reading the warrant, and it really doesn't look like there's probable cause, but then there's that sealed portion that you can't see. You know, a lot of times, the judges are saying, "You have to give me more information about why you want to get behind that sealed portion," and it's like, wait a minute. I don't even know what the sealed portion is.

So, that's a big argument that takes place all the time in criminal defense as it relates to searches of homes in LA county, and only the most skilled criminal defense attorneys – who have been doing this a long time – are going to be in a position to help unseal portions of warrants, be able to challenge warrants pursuant to the Fourth Amendment of the Constitution and get cases dismissed or lessened based on illegal searches of homes.