I find that many people are unaware of their right to keep their home free of police intrusion. In drug related cases, often times, police will try to enter a home without a warrant. The way they generally try to do this is by asking! The reality is, you are under no obligation whatsoever to say yes. I'm disturbed by how many people express that they weren't aware of that fact. Now, that doesn't mean other exigencies (which I'll discuss later) won't allow forced entry. But generally, your home is your castle, and your freedom to retreat within, absent government intrusion, is one of your most sacred and protected 4th Amendment freedoms.
Warrantless searches are presumptively unreasonable. The only way police can get around this is by exception. By far, the most common exception to justify warrantless entry and search is consent. Most folks are intimidated at the door by what is referred to as a "knock and talk". Police often perform these visits with the intention of getting the door cracked open, and talking their way in. Make no mistake, some agents are very skilled and persuasive in these situations. They can come up with a number of convincing arguments as to why you should let them in. Generally the law allows police to use persuasion to the point of trickery and deceit, as long as it doesn't rise to the level of coercion. Coercion is somewhat a grey area most times, because government agents will use tactics that come awfully close to coercion. The vast majority of people are usually no match for these persuasive talks, and the police generally are able to gain entry in these scenarios.
Even when probable cause to enter a home exists, Police still can't perform a nonconsensual warrantless entry without an exigency. That means Police can have probable cause, but without a warrant, an exigency, or consent, they're still standing on the doorstep.
Exigencies are "emergencies" or "excuses" used by police when they say they had to go ahead and make a warrantless entry. Exigencies could be excuses such as, hot pursuit of a fleeing suspect, Community Caretaker Doctrine (entry is justified because of potential dangerous situations inside the home), or police may articulate an excuse for why they believed imminent destruction of evidence was of concern. Police also allow people who are under arrest via arrest warrant at the door to go back in and put on different shoes, clothes, etc. The reason they love to do this is because they can then follow you back in as a safety exigency and they get to look around for plain view contraband. These exigent circumstances can all lead to valid warrantless entry without consent.
You may ask, if police have valid probable cause, then why don't they just go get the warrant? The answer is, because sometimes they just don't! Sometimes police may not have quite enough for the warrant. Coming by to knock and talk, followed by some persistent persuasion, police may be able to enter more easily by gaining your consent to enter, than by going to the trouble to get the warrant.
It is very common for police to talk people into opening the door, and then police see drug paraphernalia lying around in the common areas. This contraband can be seized under "Plain View" doctrine. But this doesn't necessarily open the rest of the property up to unwarranted search, in fact they technically still need a warrant, consent, or an exigency to step through the door to seize the contraband that is in plain view. Often times police will threaten to detain and lock down the people and the area, while they seek a search warrant, if consent isn't given. This may or may not be legal under the circumstances, and is fact sensitive depending on what they have viewed. Even if police do get a warrant, sometimes warrants can be challenged depending on the circumstances.
There is case law that supports the notion that police cannot threaten warrants as guarantees in the absence of consent to search. These type threats may rise to the level of coercion, thereby voiding any consent given. It pays to have a focused drug attorney analyze these situations.
The general rule to remember is that you don't have to let police in your home. In fact, you really don't even have to answer or open the door. You can be assured police can knock down your door when they have legal authority to enter. So in other words, if they can legally enter they generally will, without asking. If you do answer the door, anything police can see or smell within will likely get them through the door if they want in badly enough, and if they don't see anything, you'll likely be interrogated at the door step, and possibly convinced to grant consent for entry. If police have probable cause and find an excuse for an exigency, then in they will come.
Just keep in mind, the 4th Amendment to the US Constitution protects your right to decline entry of your home by police, absent a warrant. If you're being observed and visited by police, or you've had your home entered and contraband seized, you need to contact an Asheville Drug Lawyer today: