Today we take on illegal home searches. This post will continue our examination of some of the more common civil rights claims available to persons aggrieved by government wrongdoing. In our last post in this series, we discussed Section 1983 claims for unlawful arrest. In this post, we will continue our focus on the Fourth Amendment, specifically, for violations of a person’s right to be free from illegal searches conducted at their home.
The Fourth Amendment to the United States Constitution secures for every citizen the right to be free from unreasonable searches and seizures. The precise text of the Fourth Amendment is as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In order for the police to conduct a search of a home and surrounding property, they must have a search warrant or there must exist an exception to the search warrant requirement. A warrantless search of a home is presumptively unreasonable, subject to three prominent exceptions: (1) the consent exception; (2) the exigency (or emergency) exception; and (3) the “open fields” doctrine. These concepts will be explained more fully below. Unless one of these exceptions applies, the conduct by law enforcement may constitute an illegal home search.
Consent Exception
The consent exception is one exception to the search warrant mandate whereby an officer does not need a search warrant to conduct a search of a home. Nothing in the law prohibits an officer from walking up to a house, knocking, and then requesting to come inside and search the premises. Of course, a homeowner has every right to decline the request, or withhold consent, and that decision must be honored by the police.
For the consent exception to apply, the consent given by a homeowner must be freely and voluntarily given, and not the product of explicit or even implicit coercion. For example, consent would not be valid where the police show up and threaten to shoot a person’s dog if they are not allowed inside to search. This is an extreme example, but it illustrates that consent must be given by a homeowner of their own free will, and not influenced by the coercion of law enforcement.
It is worth noting that voluntary consent does not need to be given verbally or in any precise manner. While voluntary consent may be explicitly given, it can also be given implicitly. Consent may be inferred from a homeowner’s words, gestures, or other conduct, and the ultimate inquiry is not whether the homeowner subjectively consented, but whether a reasonable officer would believe consent was given. For example, if an officer knocks, and a homeowner answers the door and waves the officer inside without saying anything, a reasonable officer would probably believe the person was consenting to the entry of their home by the police.
Exigency (Emergency) Exception
The exigency, or emergency, exception is another exception to the search warrant requirement. The Supreme Court has held that warrants are generally required to search a person’s home unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.
One exigency negating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. The courts have made clear that the need to protect or preserve life or avoid serious injury is justification for what would otherwise be a warrantless, or illegal, search in the absence of the emergency. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.
In addition to emergency situations involving the need to preserve life or avoid serious injury, the exigency exception will also apply in situations where the police need to prevent the imminent destruction of evidence. Over the years, the courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. In considering this exception, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence.
Open Fields Doctrine 
The Fourth Amendment protects the home and its curtilage, but does not protect surrounding open fields. To search the home and its curtilage, the police must have a search warrant or another exception to the warrant requirement must apply. The police do not need a search warrant to search a person’s “open fields”.
Curtilage is the area to which extends the intimate activity associated with the sanctity of a person’s home and the privacies of life, and is typically comprised of land adjoining a house, often within some type of enclosure such as a fence. For the purposes of the Fourth Amendment, an open field may be any unoccupied or undeveloped area outside of the curtilage, and need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.
In assessing whether a particular area is curtilage, the courts ask whether the area in question is so intimately tied to the home itself that the Fourth Amendment should be extended to protect it. Multiple factors must be assessed to determine whether any given area is curtilage (and protected by the Fourth Amendment), or open fields (and not protected by the Fourth Amendment). These factors are (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by.
Importantly, the open fields doctrine only permits officers to engage in a warrantless search of what is in plain view in the open field. This prohibits, for example, an officer from searching an outbuilding or other structure located on land away from a main house or residence. To search such a structure, a search warrant is required.
You Have Rights, Exercise Them
The Supreme Court has stated that when it comes to the Fourth Amendment, the home is first among equals. At the Fourth Amendment’s very core stands the right of a person to retreat into their own home and there be free from unreasonable governmental intrusion. There is no requirement that a person consent to a search of their home. Indeed, when faced with a warrantless request to enter, a homeowner need not even open the door.
If you believe you have been the subject of an illegal home search, whether it is a front door, back door, porch, apartment, or illegal entry upon your protected land, you have rights. The attorneys at Lundgren & Johnson, P.S.C. are here to fight for you. Do not hesitate to contact us with any questions regarding your rights as a homeowner.