QUESTION
Is a search legal without a warrant?
Asked on Nov 30th, 2011 on Criminal Law - Massachusetts
More details to this question:
The police searched a house without a search warrant, after receiving a house key from a neighbor, while the sole owner of the apartment was away. Was the search justified and legal without a search warrant?
24 ANSWERS
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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Yes.
Answered on May 31st, 2013 at 12:14 AM
Appellate Practice Attorney serving Bloomfield Hills, MI
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Law Office of William L. Spern
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Why did the neighbor have the key? If the neighbor had access, it could be argued that the house owner gave permission that the neighbor approved to search the house.
Answered on Dec 12th, 2011 at 9:47 AM
Jacob P. Sartz
There could be issues with that search. If there were any issues with the search, any evidence allegedly seized may be suppressed by a timely filed and well researched motion to suppress. If the police's conduct was especially negligent, it may be grounds for a possible civil lawsuit; however, mostly, improper searches are an issue if the Prosecutor seeks to introduce that evidence in a pending criminal charge.
Answered on Dec 06th, 2011 at 6:22 PM
A search is legal without a warrant if they have permission. The question here is did the person that gave them the key have authority to give permission. This is a question of fact that I would probably ask the judge on the case to decide.
Answered on Dec 06th, 2011 at 12:51 PM
Civil Rights Attorney serving Chicago, IL
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Jackowiak Law Offices
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This is not a legal search, based on what you've offered. I say this assuming that the neighbor has no ownership of the house and is not a resident. The fact that the police used a borrowed key instead of just breaking in indicates that they did not get a judge to approve entry beforehand. I'm also assuming there were no "exigent circumstances," which is an exception that allows the police enter without a warrant if they're in hot pursuit of a suspect, responding to a cry for help, or something along these lines.
Answered on Dec 05th, 2011 at 4:12 PM
Drug Charges Attorney serving Houston, TX
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Cynthia Henley
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Since the neighbor had the key, then it appeared to police (an important legal point) that the neighbor had been given permission to enter and thus permission to allow access to others. MAYBE. This would be the argument of the State bit the defense would counter that giving a neighbor a key does not give or even appear to give the neighbor the right to let anyone else in. This is an interesting issue and needs in-depth research.
Answered on Dec 05th, 2011 at 3:00 PM
Volumes have been written about search and seizure law. Generally, a search without a warrant, the owner's permission, or certain exigent circumstances (like public safety) is not legal.
Answered on Dec 05th, 2011 at 1:06 PM
Kevin Michael Smith
Certainly illegal, unless the State can prove some exception to the warrant requirement. This is an issue your lawyer will need to research and brief thoroughly and then demand a suppression hearing.
Answered on Dec 05th, 2011 at 12:52 PM
Michael J. Breczinski
No the search was not legal unless there was an exception, like there was smoke coming from the house or the neighbor reported some one breaking into the house.
Answered on Dec 05th, 2011 at 12:41 PM
Criminal Law Attorney serving Lancaster, NH
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Harden Law Office
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It all depends on facts, but it seems like a legitimate violation of search and seizure law. You will need a good defense lawyer to fully explore the facts and seek suppression.
Answered on Dec 05th, 2011 at 12:33 PM
James Lochead
Absolutely not. Just because the neighbor had a key does not give him the authority to consent to the search of another person's residence. Absent consent, the authorities need a warrant.
Answered on Dec 05th, 2011 at 12:31 PM
Divorce Attorney serving Little Rock, AR
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Law Office of Kathryn L. Hudson
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The Fourth Amendment prohibits the search or seizure of private property without a warrant issued by a neutral magistrate and the warrant must articulate with particularity the place to searched and the things to be seized. The search you describe would be illegal and anything seized could not be used as evidence. If the police entered the home by using a key taken from someone other than the homeowner or lawful tenant to enter a property absent and emergency they have committed a trespass and could face prosecution themselves.
Answered on Dec 05th, 2011 at 12:30 PM
Only if there was probable cause. For example, if a neighbor told the cop he witnessed illegal activity inside.
Answered on Dec 05th, 2011 at 12:20 PM
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The general rule in Massachusetts is that a search of a house (or apartment) without a warrant is unlawful. To this general rule there are a number of exceptions. One exception is a search conducted with the consent of the owner of the apartment. The law recognizes that persons other than the owner may give a valid consent for a search without a warrant. A third person who possessed common authority over the apartment or its contents - for example a roommate or co-tenant who still lived in the apartment - could give valid consent for a search without a warrant. In the case you present the neighbor had a key. The neighbor's relationship to the apartment, why they had a key, the neighbor's use of the apartment (if any), what specific permission the neighbor was given, and questions like these go into the mix in determining whether the neighbor had authority - actual or apparent - to consent to a search by the police without a warrant. If, for example, the neighbor was given a key solely to water the plants and gather the mail, then an argument could be made that the neighbor did not have the authority to consent to a warrantless search of the apartment. These cases are very fact specific.
Answered on Dec 05th, 2011 at 11:55 AM
Appellate Attorney serving University Place, WA
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Baner and Baner Law Firm
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What I mean to say is this: when someone is arrested for a criminal offense they are either appointed an attorney or they hire one (if they chose to go without an attorney they are utterly without reason, and are ignored for our discussions here). Thus, either this question is ENTIRELY hypothetical, or it should be evaluated on the actual facts of the case by the attorney of record. If ENTIRELY hypothetical then a key does no more to present valid consent then does a brick applied to a window. If NOT ENTIRELY hypothetical: TALK TO YOUR ATTORNEY.
Answered on Dec 05th, 2011 at 11:55 AM
To make any search the police need reasonable cause. If the police had information that there was evidence of illegal activities going on in the home and that there was a chance that the evidence would be destroyed if they waited for a warrant then they could make the search. Searches depend on the facts. Sit down with an attorney and give him all the facts.
Answered on Dec 05th, 2011 at 10:34 AM
Criminal Defense Attorney serving Pittsburgh, PA
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Law Office of Jeffrey L. Pollock
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It would appear that the rightful possessor did not grant the consent needed to obviate the need for a warrant.
Answered on Dec 05th, 2011 at 10:28 AM
Federal Criminal Law Attorney serving Fresno, CA
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Mark A. Broughton, PC
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This is an interesting situation. I have a case on appeal right now on an issue very much like this one. The answer really depends on the exact fact of the case. I can't go into a lengthy recitation on search and seizure law here, but generally, the police need a warrant, "exigent circumstances," or consent to enter a residence. Your situation falls into the area of consent even though the owner didn't give actual consent. If the police were acting in good faith on the ostensible authority of the neighbor, the search may be upheld. There are some very interesting cases dealing with situations like this - some allowing the search, others saying the police should have had a warrant. There is a very thin line between a justified and an unjustified search. The best advise is to consult with a good criminal defense attorney who can explore all the facts and law of the case.
Answered on Dec 05th, 2011 at 10:16 AM
Bankruptcy Attorney serving Federal Way, WA
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Freeborn Law Offices P.S.
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The neighbor had the key. Sounds like she had control of the apartment and if she gave permission to the police to enter, the search may be legal. Since I don't have any of the facts, I suggest that an attorney in your area be consulted.
Answered on Dec 05th, 2011 at 9:39 AM
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With no search warrant and no consent, they cannot search the house.
Answered on Dec 05th, 2011 at 9:39 AM
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Depends on the facts. There are many reasons to search without a warrant, i.e. possible destruction of the evidence, so no time for a warrant.
Answered on Dec 05th, 2011 at 9:32 AM
Criminal Defense Attorney serving Millburn, NJ
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The Gorman Law Firm
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A warrantless search is presumptively invalid, but the State can overcome that presumption.
Answered on Dec 05th, 2011 at 9:20 AM
James Edward Smith
There would have to be an exception to the requirement for a warrant for the search to be legal, i.e., consent, exigent circumstances, plain view, etc.
Answered on Dec 05th, 2011 at 9:14 AM
Family Law Attorney serving Boston, MA
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Law Offices of Susan Correia-Champa
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The police need exigent circumstances to search without a warrant. Your neighbor cannot consent unless emergency or they own the property.
Answered on Dec 05th, 2011 at 9:14 AM