Search Warrant Requirements in NC

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.

The Fourth Amendment protects people against unreasonable searches and seizures by the government. In most cases, the government must obtain a warrant to search or seize your property. Before a judge issues a warrant, the government must prove they have probable cause to believe a crime was committed. This begins the search warrant requirements by the police.

To prove there is probable cause, police officers submit affidavits for search warrants describing their observations or containing information from private citizens or confidential informants that explain why they believe criminal activity is occurring.

If the judge finds there is probable cause, they will issue a warrant authorizing the police to search a specified location for specific evidence of criminal activity.

When Is a Search Warrant Required?

According to search warrant requirements, police officers must obtain a search warrant when they wish to search a place where a suspect has a “legitimate expectation of privacy.” No warrant is required if a person does not have a legitimate expectation of privacy in the place to be searched.

The US Supreme Court has created a two-part test to determine whether a person has a legitimate expectation of privacy.

1. Did the person have a subjective expectation that the place or thing would be private (i.e., did they believe it would remain private)?
2. Was the suspect’s expectation of privacy objectively reasonable (i.e., would a reasonable person in a similar situation have the same expectation of privacy)?

Searching a person’s home is the quintessential example of search warrant requirements. Most people believe their home is private (i.e., they have a subjective expectation of privacy), and most people believe that this expectation of privacy is reasonable (i.e., the expectation of privacy is objectively reasonable).

Exceptions to the Search Warrant Requirement

There are some instances when search warrant requirements are not needed to abide by.

Consent. Police do not need a warrant if a suspect has consented to the search.

Plain View. A warrant is not required when evidence of a crime is in “plain view.” Plain view means the police officer can see evidence of criminal activity without conducting a search. If a police officer is in your home and sees drugs on the kitchen table or sees narcotics on the passenger seat during a routine traffic stop, no warrant is required.

Search Incident to Arrest. When police arrest a suspect, they do not need a warrant to search the area in the immediate control of the suspect. This exception is intended to protect the officer’s safety by allowing them to conduct a “protective sweep” to identify potential threats.

Stop and Frisk. Also known as a Terry stop, police do not need a warrant to stop and frisk someone they believe is unlawfully carrying a firearm. If the stop leads to evidence of a crime, that evidence is admissible in court even though the officer did not have a search warrant.

Exigent Circumstances. Police can conduct a warrantless search if the time needed to obtain a warrant would jeopardize public safety or lead to the destruction of evidence. For example, police do not need a warrant if a suspect is going to flush drugs down the toilet, if someone is in danger, or if they are in “hot pursuit” of a suspect.

No Fourth Amendment Protection. Only government actors are required to obtain a search warrant. Private citizens, like security guards, are not required to obtain a search warrant. A private citizen who searches a place where a person has a legitimate expectation of privacy may be violating other laws, but they have not violated the Fourth Amendment because it only applies to government agents like the police, FBI, and other law enforcement agencies.

Search Warrant Requirements and the Exclusionary Rule

If a judge determines that law enforcement agents should have obtained a warrant but they conducted a search anyway, any evidence obtained during the illegal search will be suppressed. This illegally obtained evidence is known as the “fruit of the poisonous tree” and cannot be considered in a criminal trial.

Unfortunately, there is little you can do to prevent police from searching your property. If they have a warrant, ask to see it. Verify that they have the correct address. If the police ask to search a building not identified on the warrant, do not consent to the additional search.

Be firm but courteous in your interactions with the police, then contact an experienced criminal defense lawyer who will seek to have illegally obtained evidence suppressed.

The Stowe Law Firm: Serious Representation for Serious Crimes.

North Carolina criminal defense attorney Ryan Stowe has extensive experience defending people accused of crimes. He is a tenacious advocate and fierce defender of his client’s rights. To learn more about search warrant requirements, contact the Stowe Law Firm today to schedule a confidential consultation to discuss your situation and how we can help.

The Stowe Law Firm is based in Salisbury, North Carolina, and proudly represents people in Cabarrus, Davidson, Rowan, Davie, and Stanly counties.