Jeffrey K. Rubenstein (Criminal Defense Attorney) gives expert video advice on: Can I refuse to let the police entry into my home or business?; Can I refuse to allow the police to search me or my property?; Under what circumstances can the police stop me while driving? and more...
When are the police allowed to enter my home or business?
There's an old adage here in the United States that a man is king of his castle. And there's still an old Wild West element that nobody is allowed to enter your house without your permission or without a search warrant. And a search warrant is when a judge or a magistrate signs a piece of paper saying that there is probable cause to believe a crime has been committed there. The only exception is what we call exigent circumstances or where there's an emergency such as somebody screaming for help or gunshots behind the door, that obviously not only common sense, but the law would dictate that the police can enter.
Can I refuse to let the police entry into my home or business?
You can absolutely refuse to let the police or anybody else into your home or business, unless they have a warrant.
What is a "search warrant"?
A search warrant is a probable-cause declaration which the police bring to judges. So here's what happens: somebody tips off the police that they believe their neighbors are drug-dealing. The police then set up surveillance and they write a report for a judge to sign that says, between midnight and 4 a.m. we saw 4 people come knock at the door and exchange something and then leave. Based on my training and experience in the academy this looks like narcotic sales. In addition, we stopped one of those people and they told us that they had just bought narcotics at the location. The police write all that up in what's called an affadavit for a search warrant. They bring it to the judge and they say, judge, this is what we saw, give us a search warrant. They now have, are able to articulate that there is probable cause to believe that a crime, i.e. drug dealing, is being committed therein and the judge signs a search warrant which gives them access.
Can the police seize something of mine without a warrant?
Generally, the search and/or seizure of property, according to the 4th Amendment, is prohibited unless the police have a warrant. There are many exceptions, however, to the warrant requirement. One is plain view. If the police come to your house, and you open the door and they see an illegal firearm there, or they see drugs on the table, then the plain view exception would come in and they can seize it without requiring a warrant.
Can the police ever enter my home without permission or a warrant?
Generally the police cannot enter your home without a warrant, unless emergency circumstances apply. If there's a fire, obviously they can enter. If somebody is screaming they can enter, but the general rule is no. Do the police always follow that? No, sometimes the police will enter your home without a warrant.
Can I be searched or "frisked" if I'm not under arrest?
The answer is yes; you can be searched or 'frisked' if you're not under arrest. There's a case, Terry v. Ohio, and from that they get what they call a "Terry" pat. This means the police are allowed to stop and frisk you for officer safety if they just have a small suspicion that a crime is taken place. That is your typical pat-down search, and it's supposed to be for weapons. What has developed from the Terry case is what they call the 'plain feel exception'. So, for instance, most of us patting somebody down might be able to tell the shape of a gun. We might be able to tell the shape of a screwdriver. Officers with experience say they can feel what a baggy with marijuana inside feels like, and a syringe, and various other things. So, from what they call a Terry pat; stop and frisk, probable cause for further search can also develop.
Can I refuse to allow the police to search me or my property?
At any time, you can and should refuse to allow the police to search you or your property. Somebody could be visiting, or have visited, your house and left something illegal there. Somebody could even have put something in your pocket. It happens. You can refuse to be searched.
Under what circumstances can the police stop me while driving?
They're supposed to only stop you if they believe some type of offense has been committed or they have a suspicion of such an offense. However, under most State vehicle codes there are so many offenses that almost anything you can think of doing could be an offense. Anything from a dome light out in your car, to a cracked taillight, even minor things, if they think your tires are bald, any minor offense, they have the right to stop you and then question you.
Under what circumstances can the police search my car?
There's a long line of cases that, once the police stop you, even for a minor violation, if suspicion arises for anything, they can search your car. The cases have now been extended to provide for officer safety, so they're almost allowed to search your car for anything. If the police believe there might be a weapon in your car, they can take everybody out of the car and search the car for officer safety, to make sure there's no weapons.