When the Police Can Search Your Home Without a Warrant

Tactical officers surround an apartment building in Watertown, Mass.

Police in tactical gear surround an apartment building in Watertown, Mass., on Apr. 19 while looking for Dzhokhar Tsarnaev, the suspect in the Boston Marathon bombings. (AP Photo/Charles Krupa)

The nail-biting manhunt for the Boston Marathon bombing suspect on Apr. 19 led police from door to door in Watertown, Mass., looking for Dzhokhar Tsarnaev. How were police able to search people’s homes without warrants?

 

No Warrant, but Still Need a Reason

The Fourth Amendment, of course, requires police to have warrants supported by “probable cause” to conduct searches. But exceptions allow police to make emergency searches without warrants – and sometimes even without probable cause.

The “exigent circumstances” doctrine allows police, on the spot, to search a place where they’d otherwise need a warrant, explains David Rossman, a professor of criminal law at Boston University School of Law.

A recent example is represented by Kentucky v. King, he says, the 2011 U.S. Supreme Court case in which police, chasing a suspect, knocked on a door and heard noises that led them to believe evidence was about to be destroyed. The Court overturned the Kentucky Supreme Court, holding that the exigent circumstances exception applies even when police conduct “causes” the circumstances – basically by chasing the suspects.

“If they have probable cause, they can search without a warrant when taking the time to get one either would result in the destruction of evidence or present a danger to someone,” Rossman observes.

 

Public Safety, No Probable Cause

While some sources have conflated the two ideas, saying the exigent circumstances doctrine allowed Boston and federal police to search homes in the Tsarnaev manhunt because of public safety concerns, Rossman says public safety is a separate exception to the Fourth Amendment.

Professor David Rossman headshot

Professor David Rossman

“That was really the public safety exception, not so much the exigent circumstances exception,” says Rossman. “In the latter, they need probable cause. For the former, they don’t; they just have to have a reasonable belief that there is a potential danger to the occupants inside a dwelling.”

Certainly there was potential danger to the neighborhoods Tsarnaev was ranging through; he was thought to be armed and very dangerous, seeing as how he and his brother had allegedly just blown up the Boston Marathon and then shot and killed a campus police officer at MIT.

As for the probable cause necessary to search each home under exigent circumstances, that would have been more difficult to establish: Was there any reasonable evidence that Tsarnaev was inside any one particular home? Likely not, until the bloody tarp and boat were discovered.

 

‘I’m on, no, in a Boat!’

What if Tsarnaev had holed up in a home – or even the boat – and refused to come out for a longer period of time. Would the police have needed a warrant then?

“If he was an active shooter, or presented an imminent danger, then no,” Rossman says. “If he was just inside a dwelling and didn’t know the police were there to arrest him, then yes.”

While it was probably the furthest thing from their minds, the police could have legally busted others who let them into their homes in their sweep through Watertown – for totally unrelated crimes.

Rossman says the police would have been within their rights to arrest someone for, say, guns or drugs they found in the sweep, without a warrant. But the evidence would likely have had to have been in “plain view” – yet another Fourth Amendment rule.

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