Most people are generally familiar with the concept of a search warrant. A search warrant is an order signed by a judge authorizing an officer to take possession of a location and search it for specifically designated items that might be evidence of a crime. Search warrants are generally controlled by the 4th Amendment to the United States Constitution, and Article I, Section 11 of the Indiana State Constitution. The default rule is that an officer HAS to have a warrant to search a person or a location. There are a number of exceptions that the law has created over the years to the requirement that a warrant be issued before a search.
The first exception to the warrant requirement is CONSENT. If an officer asks you for permission to search your person, your car, or your home and you say “YES”, you’re considered to have waived any objections to the lawfulness of the search later. Now, there are times when this consent may not actually be consent, but that’s a fact-sensitive issue that would need a scheduled appointment to fully develop.
Another exception is commonly referred to as the “plain smell” exception. This applies primarily to cars, and is almost always in connection to marijuana cases. Under Indiana law, the odor of raw or burnt marijuana creates automatic probable cause to search a vehicle without a warrant. The theory is that you have a reduced expectation of privacy in your car, and the fact that the car is “readily mobile” means that the evidence is capable of being destroyed before a warrant is obtained.
A close companion of the plain smell exception is the “plain view” exception. This one still primarily applies to cars, but can also apply to houses and apartments, too. This exception allows for an officer who actually sees contraband out in the open has probable cause to search the area immediately around the contraband as well as anything immediately around the person who was found with the contraband for other items.
A vehicle inventory search is also an exception to the warrant requirement, because the Courts have held that an inventory search is not a “search” for the purposes of needing a warrant. The purpose of an inventory search is to create a record of personal property in a vehicle to protect a citizen and the police department from being sued if there’s an allegation of damaged or stolen property when a person is arrested. The fact that these searches frequently turn up additional evidence of other crimes is, I’m sure, just a coincidence.
Any type of search is going to be a fact-sensitive situation, and should be fully discussed with your attorney to determine what steps, if any, you’re able to take to see if evidence against you was illegally obtained.
At Razumich & Associates, our goal is to make sure that each of our clients receives the personalized attention that their cases deserve so that they can make the best possible decisions on important matters affecting their future. We personally meet with everyone who sets an appointment with our office, and we will take as long as necessary to make sure that every question you have is answered as completely as possible. That’s our promise to you: we’re Lawyers Ready to Fight, and we look forward to fighting for you.