A warrant v warrantless search can be the difference between a constitutional violation and a legal search (and later seizure) by a police officer. Warrant v warrantless searches can occur in many situations and circumstances. To begin, a warrant to search is constitutionally required in situations, unless there is a constitutionally accepted exception that allows for a warrantless search.
The warrant to search must enumerate specific areas, locations, property and otherwise those things, items, places or persons that are to be searched. Moreover, in order for the warrant to be proper and constitutional there must be a factual basis establishing a reasonable belief or ability to find criminal activity within the area or location enumerated in the search warrant. An officer will submit what is called an affidavit of facts to a magistrate or judge for review and approval. This statement holds true, so long as there is not an exception to the general rule that requires a police officer to first obtain a warrant prior to performing a search on an individual here in the United States.
The exceptions to the warrant requirement allows for an officer to perform a warrantless search, and thus without first submitting an affidavit to a neutral and detached magistrate. Exceptions to the warrant requirement include situations involving situations where the officer has seen criminal activity in plain sight (or smell), in exigent circumstances, when an individual consents, when the situation lacks a reasonable expectation of privacy, or in other various situations. Essentially, unless a warrant is presented in a situation, an individual should always deny consent to be search or have his or her property, home, vehicle or otherwise searched.
No matter the situation an individual always has the right to deny consent to search. In fact, it’s a constitutional right, and it can make the difference in warrant v warrantless searches. In the end, if you are approached by a police officer, you have the absolute right to remain silent, not answer any of his or her questions, deny a consent of your person and property, and to ask if you are allowed to walk away or free to leave. If he denies you the ability to leave or walk away, then you may be in a situation known as a custodial arrest or detainment, and at this situation you want to invoke your rights to silence and an attorney immediately, emphatically, and vocally to the officer. Know the law, maintain your rights, and lawyer-up.
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