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The Fourth Amendment of the United States Constitution protects us against unreasonable searches and seizures. However, law enforcement officials often make mistakes, whether from lack of knowledge or training or in an over eager attempt to curtail criminal activity. Unfortunately, it is highly unlikely that you will have access to a criminal defense attorney while a search is being conducted of your home. Therefore, it is beneficial to know the principles of a home search so that you can later discuss any possible violations of your Fourth Amendment rights with your criminal defense attorney.

Under most circumstances, police cannot search your home without a warrant unless you give consent. Read our previous post of January 27, 2016, on consent and avoiding a little known pitfall. It is rarely in your best interest to consent to a search without a warrant. If you do give consent and it is later found that the police mislead you regarding who or what is being investigated, any evidence found may be excluded. The police officer does not have the obligation to tell you that your consent could lead to a criminal prosecution.

If the police do have a warrant, the Fourth Amendment requires that it must describe the place that will be searched and what evidence they will seize. Essentially, the warrant must be specific enough that any officer would be able to determine the exact area described and the exact evidence that they are looking to seize. For example, if the warrant allows a search of the home, the officer is probably out of bounds if he or she also searches your detached storage shed. Further, the inspection must be confined to spaces that could possibly contain the relevant evidence. If an officer is searching for a gun, he or she cannot search kitchen drawers that are obviously too small to contain the gun he or she is searching for.

Please note that any evidence that is in “plain view” of the officer conducting the search, even if it is not specifically listed in the warrant, is subject to seizure and most likely admissible in court.

Rule 41 of Tennessee’s Rules of Criminal Procedure governs warrants and searches and seizures. It states, in part:

1)Who May Execute.The search warrant may only be executed by the law enforcement officer, or one of them, to whom it is directed. Other persons may aid such officer at the officer’s request, but the officer must be present and participate in the execution.

(2)Authority for Forcible Entry.If, after notice of his or her authority and purpose, a law enforcement officer is not granted admittance, or in the absence of anyone with authority to grant admittance, the peace officer with a search warrant may break open any door or window of a building or vehicle, or any part thereof, described to be searched in the warrant to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property.

(3)Timely Execution.The warrant must be executed within five days after its date.

(4)Leaving Copy of Warrant and Receipt.The officer executing the warrant shall:
(A) give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property; or
(B) shall leave the copy and receipt at a place from which the property was taken.

Having your home searched is most likely a very upsetting event. It is always advisable to speak with a criminal defense attorney, especially if evidence was seized or if you feel that your Fourth Amendment rights were violated. Ryan K. McFarland of McFarland Law Office, located in Clarksville, Montgomery County, has thorough knowledge of and experience with the limitations placed on police by the Constitution and by state and federal law. We are very happy to discuss your situation with you. Consultations are free of charge. Feel free to contact us at (931) 516-9009.



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