The Fourth Amendment of the U.S. Constitution prohibits “unreasonable searches and seizures” by police and other government agencies. When police have a warrant, they can enter a person’s home without the homeowner’s consent, or even if he/she isn’t home (more on that later). However, there are many circumstances when an officer cannot enter a home without permission. New Jersey residents should know their rights regarding police and their property.
When Police Can Enter Your Home Without Your Permission
When police officers have search warrant or an arrest warrant, they do not need permission to enter a person’s home. That said, they are required by law to “knock and announce” and wait for the homeowner to answer the door. However, when there is a warrant, police are only required to wait a reasonable period of time before forcing entry.
Even without a warrant, there are many circumstances in which police may enter a home and search the premises. This includes:
- When there is reason to believe a person inside may be in imminent danger (due to criminal activity or because of medical needs).
- When illegal activity or contraband (i.e. drugs) are in “plain view”; this could be through a window or because the homeowner opened the door in response to police knocking. Sometimes an officer will be let in upon consent of the homeowner (“mind if we come in to speak with you?”) and then while inside notice something illegal in plain view.
- When there is probable cause to believe entry will uncover criminal activity or contraband. Examples include hearing screams for help or smelling marijuana.
- When there are exigent circumstances. This is an extension of probable cause that allows the officers to enter because they believe that the time needed to get a warrant could result in the suspect escaping or evidence being destroyed.
This covers a very wide range of circumstances, but it is far from all of them. If the homeowner is confident that none of the above situations are true, then he/she can refuse permission to the officer and even close the door on them. Moreover, exceptions such as exigent circumstances do not give police carte blanche to enter a home whenever they wish. Courts recognize the difference between legitimate exigent circumstances those which are “police-created” (State v. Hutchins). Similarly, police cannot use the “plain view” exception for any evidence uncovered during a warrantless entry (State v O’Herron).
It’s important to realize that these rights are not exclusive to the inside of one’s home; police cannot search or enter a person’s yard without a warrant or the above-mentioned probable cause. The same rights apply to a vehicle parked on private property, such a driveway, lawn, or garage. In fact, these rights were recently secured in a 8-1 decision by the Supreme Court.
Police Can Enter Your Home with a Bench Warrant
A bench warrant—such as the type issued when one fails to attend traffic court—is an executable warrant that gives police the same authority to approach and enter property and take persons into custody as any other type of warrant. The main difference between a bench warrant and an arrest warrant is the former is issued by the court and the latter is issued by police as part of an investigation.
When Police Can Kick in Your Door
TV and movies love to depict police kicking in doors when searching for evidence or suspects. It’s true that police have permission to conduct a “forced entry,” but there are rules they must follow first. As mentioned above, police must knock and announce themselves, then wait a reasonable amount of time before entering. The exception again is when exigent circumstances exist.
When You Are Required to Open the Door for Police
If police knock and state they have a warrant, then one is required to open the door. In most other circumstances, a person can refuse to open the door. Keep in mind that most officers are only doing their job and may only wish to ask questions. Still, a person is not legally required to answer the door, let alone respond to questions in such circumstances.
Urgent Situations in Which Police Can Enter the Home
As mentioned above, there are scenarios in which a police can enter a home without getting a warrant or permission from the homeowner. These include when police have probable cause to believe:
- A person is in imminent danger of another person.
- A person is having a medical emergency (e.g. heart attack).
- A crime is being committed that moment.
- Evidence of a crime could be destroyed in the time needed to obtain a warrant.
- A suspect may escape in the time needed to obtain a warrant.
Police can also enter if a friend or loved one has asked police to conduct a wellness check; for example, if an elderly relative has not been heard from in days and is not responding to phone calls or answering the door.
Rights Regarding Police at Your Place of Business
Similar to the home, when it comes to businesses, police can enter without permission if they have an arrest warrant for anyone suspected of being on the property (e.g. an employee or frequent customer). They may also enter if they have a search warrant. Likewise, a landlord or primary lease holder can give permission to police to enter a property or office space.
Telling Cops to Get off Your Property
As noted above, unless there are urgent or exigent circumstances, police do not have the right to enter one’s private property. Schneckloth v. Bustamonte established that homeowners have every right to insist that police obtain a warrant before entering their home. And State v. Hutchins set a high standard for police to meet to justify any warrantless search of private property. This includes yards, driveways, porches, etc. In many cases, one is well within their rights to tell police to “get off my lawn.”
What Can I Do If Police Illegally Entered My Home?
Having police enter one’s home without permission can be a shocking and stressful situation. Evidence obtained through an illegal search of one’s home should be suppressed (excluded from being used as evidence in court) and should not be used against one in criminal proceedings. If you or a loved one believes police illegally entered your home or other property, contact an attorney to discuss your rights.