When Police Come To Search, What Are Your Rights?
It's their job to incriminate you -- not yours. Say nothing.
I’ve been dealing with a lot of search warrants lately, so I thought it might be useful to spell out what happens should law enforcement arrive at your door with the right to break it down and search your home.
First, such a right arises from the issuance of a valid search warrant. That means a police officer or confidential informant must appear before a judge and swear to enough information regarding criminal activity involving you or your home to lead a judge to believe that a crime is being committed there or that proceeds of a crime can be found. Once that warrant is signed and dated, it must be “executed” or carried out within a certain number of days.
The warrant specifies whether they can break down the door (“no-knock”) and whether the entry can occur anytime day or night (generally it can).
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The rationale for breaking down the door is that if there’s reason to believe a crime is being committed inside your house, the police want to either catch you in the act or find whatever they’re looking for, before you have a chance to delete it from your computer, flush it down the toilet, throw it out the window or swallow it — to name just a few ways evidence is disposed when people know police are coming.
Here’s a common scenario: You’re sleeping in your bed. It’s 6:00 a.m. on a weekend. You hear a rumble at the door that sounds like a wrecking ball hitting your house. (It’s called a battering ram and is used to breach your door.) Police wearing flak jackets and helmets who are carrying shields, flashlights, and guns then burst into your bedroom before you even have time to put your feet on the floor.
Their first order of business is to “secure the premises,” meaning they’ll search the entire home quickly to make sure any person inside is located and subdued if necessary.
Pets, at least dogs, will be corralled into a bathroom, door firmly shut.
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They’ll generally put all the people they find in cuffs and either bring them out into the hallway (if it’s an apartment) or to a common area where they can watch them.
They won’t read you your rights at this point. Technically you have not yet been arrested, and they’re not seeking to interrogate you, yet. They will ask you, “Do you have anything in here I should know about?” That’s code for “Where’s the illegal stuff?” — guns, drugs, porn, whatever they came to find.
Do not answer. They’ll probably find it anyway, but if you volunteer by telling them where to find the 9 millimeter, they’ll definitely find it and charge you with weapons possession. Unlike other areas of life, where being truthful wins you brownie points (actually I can’t think of many areas where this is the case), being truthful here will only get you convicted.
And don’t say, “It (pick a contraband) is in the kitchen drawer, but it’s not mine.” Again that shows knowledge. There’s this inconvenient presumption in the law called constructive possession. You are presumed to have knowledge of everything in your home if it is located in an area where you exercise dominion or control. Thus, even though the marijuana in the freezer isn’t yours, if you use that freezer, you can (and most likely will) be charged with it.
So, what are your rights?
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Basically, at the point they break down the door, you have none. Their search has been authorized and you’ve got to just sit there and let it happen. They will not show you the warrant. They don’t have to. “This is not CSI,” as one cop recently told my client after bursting into her apartment.
Your rights play a role after you’re arrested. That’s when your lawyer will have the chance to controvert the warrant. Controverting the warrant means bringing a motion saying that the affidavit in support of the warrant or the warrant itself is “infirm.” Such infirmities can be based on a technicality like a warrant that described the wrong color of the front door or number of the apartment, or it could challenge something more complex like the reliability of the confidential informant, the guy who gave police the information that led to your arrest.
This will then lead a different judge than the one who signed the original warrant to review the affidavit (you’ll get a copy, but it will be so redacted to protect the identity of the informant that it’s like reading code.) But there’s a presumption (at least in New York) that if another judge already found the confidential information credible, the affidavit will be sufficient. If you’re lucky, you’ll get a hearing to cross-examine the informant yourself.
So again, I return to a rule oft-repeated in this column. If police should come to your door pursuant to a warrant, and they ask you if you’ve got anything inside they “need to worry about,” say nothing. It’s their job to incriminate you — not yours.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.
