Search and Seizure, Probable Cause & Search Warrants: When can they go into the house?
[Editor's note: this faq applies to the United States only. The rules for warrantless searches, and searches, in general, are somewhat different for Canada and other countries" Lothar]
I. Searches of homes: Probable Cause Requirement
As I have stated on several threads, LEO needs "Probable Cause" (Hereafter p/c) in order to get a search warrant for a house. But what exactly does that mean and what is the scope of probable cause?
Unfortunately, that is far beyond the scope of this thread as you would need classes in Constitutional Law and Criminal Procedure to fully understand the topic.
I will try to give a summary in a few paragraphs: In brief, Probable Cause means it is more likely than not (i.e. "probable") that:
1. THIS Defendant committed the crime and
2. THIS person/house etc that you are searching is the Defendant or was under his control.
SMELL: In most States, even the smell of marijuana does not provide p/c to search a home- or even a CAR in some States! Check with your friendly neighbourhood criminal lawyer on this one.
BUDS AND/OR STEMS: Most certainly! AND REMEMBER, THEY CAN SEARCH YOUR GARBAGE WITHOUT A WARRANT AND WITHOUT PROBABLE CAUSE. IF THEY FIND STEMS OR SEEDS THEN
INFORMANTS TIP: Yep But it must be a \"reliable informant\" with specific knowledge. And yes, pissed off girlfriends count- they are the number one lead for LEO.
What about getting into the house without probable cause and/or a search warrant?
II. Getting around probable cause:
Cops have all kinds of tricks to get around the warrant requirement:
1) Firemen lawfully in the house
2) Medical emergencies
These first 2 fall under the "Exigent Circumstances" exception to the search warrant requirement. IF THERE ARE SPECIAL CIRCUMSTANCES, THE PO CAN ENTER W/O A WARRANT.
This was recently dealt a blow by the U.S. District Court for Tennessee.
Evidence found by Police when they accompanied the defendant's landlord into a leased house to "protect" the landlord because landlord found a water leak and was worried about carpet damage WAS SUPPRESSED..
The leak was from a hydroponics marijuana grow op- and does anybody think the po were there to serve and protect? They were watching the op and looking for an excuse to get in the house!!!!
The Court said to do a warrantless search:
1. Time must be of the essence
2. Risk of danger to persons
Since neither were present, CASE DISMISSED.