Did they do an illegal search if my son was not home? 48 Answers as of January 07, 2012

A search is legal if anyone in the dwelling gave permission for the search. If your son occupied a room at a university, college, or fraternity, permission for a search could be granted by anyone in authority. If none of these conditions were present then the answer is no, the search was illegal and any evidence seized would be inadmissible as fruits of an poison tree.

If the police had a search warrant the person in charge of the property need not be present during the search. If the police did not have a search warrant then they can search if the search falls within one of the exceptions of search warrant requirements.

A person does not need to be home for a search to be legal. The questions are: Did the search take place pursuant to permission? Who gave the permission? Did that person have authority to give permission? Was the permission limited in scope? What was the permission based upon? For example, a roommate can give permission to enter and search common areas, but personal space, not so much, it depends on the circumstances. A Judge or Magistrate can give permission, via a warrant, but only if the warrant is based on an affidavit, properly sworn, that gives just cause.

Whether it was legal would depend on whether they had a search warrant or proper permission.

Depends if there was a warrant or not.

The police can search your home if they have a search warrant or an arrest warrant. He does not need to be home and they can break down the door to enter if he is not home if the warrant allows that.

You don't say whether the search was warrantless or not. There is no general rule that the suspect be present when the search takes place. Sometimes the police can search without a warrant. I need more information before giving a complete answer.

If you gave the police permission to search your son's room or if they had a warrant, he did not need to be home.

That depends. If they had a search warrant then yes, it was legal. Also if someone who appeared top the police to have lawful exercise and control over the premises gave the police consent to search, it was probably a legal search.

If the police entered your home without permission and without a warrant, and searched your son's room, the search would be illegal and any evidenced seized as a result of that search would be suppressed.(not allowed as evidence) If a parent or owner of the house gave the police permission to search his room, then the search may be legal and any evidence seized can be used at trial. The facts of the case will be important and may determine whether the search was legal or illegal.

The fact that your son was not present does not make the search illegal. However, there may be other factors that cause the search to be a violation of his rights. I would strongly encourage you to seek legal representation for your son.

I will need more facts to accurately respond to your question. If they had a warrant and a non minor let them into to the house, the search may be legal.

It depends on whether or not the police had a search warrant at the time of the search.

Without a warrant, consent, or some other "exigent circumstance," a search would be unlawful. If he was on probation at the time, most of not all terms now include a search/seizure waiver that would allow a search without a warrant. Other times, a family member gives consent to the police to enter and search. But standing on it's own, that would not allow them to search his home.

The police can search a house with permission of the owner, a valid search warrant, or a valid exception to the search warrant requirement. Whether or not your son was home while it was searched, is irrelevant. If you are in doubt of the validity of the search, have a criminal attorney review the case file.

It is legal if the police had a warrant to search or if there were any exigient circumstances which precluded the need for a warrant, such as emergency or spoilation of evidence.

Unless they have a warrant or permission to search the room, the police could not likely conduct a lawful search. (There are some exceptions.)

If someone with authority let them search, it's a valid search; otherwise, there would have to be a search warrant issued.

If you son lives with you, and the police have a warrant to search, it is perfectly legal to search as long as someone is home.

If you allowed them to search or another person who lives there allowed the search, yes it is legal. I am assuming you allowed the search. Also, some bond conditions require a person to consent to a search.

You don't really give enough facts to tell if it was legal or not. Was it his home? Did someone that had legal control of the home give permission? The question that the court asks is did he have a reasonable expectation of privacy that was violated.

Without a search warrant it was probably an illegal search.

A search can legally be performed for a number of reasons. A Warrant can give authority to search, even if the person who lives there is not at home. There can be a consent search by the person in possession and control of the area. Hot pursuit can also be a valid reason to search. Your issue involves someone who is not home but a search was made. If it was by permission or pursuant to warrant, then it may be legally permitted. However, if the search was done under pretext or it exceeded authority to search or the person giving authority to search did not have the actual authority, then the search may be deemed invalid and a suppression motion may exclude the evidence from being admitted at trial.

A search of someone's room does not necessarily depend on whether the occupant/owner of that room was present. The police may search someone's room if they receive proper consent, they have a search warrant, or exigent circumstances exist at the time they conduct the search. Law enforcement may also conduct a search of a room if they observe something illegal that is in plain sight. There are a number of factors the court will consider before dismissing evidence or dismissing a case where there may have been an illegal search. If your son is being charged with a Misdemeanor, he should get a Criminal Defense Lawyer to evaluate the circumstances surrounding the search of his room, as this may be a pivotal key in determining the outcome of his criminal case.

Did the police have a search warrant? Did you consent to the search? If either of these is true, then you are going to face a tough road ahead in challenging the search. Still, depending on the circumstances, there may be ways to attack it. You need to get an attorney working with you and your son who can look at all of the facts and discuss the best way to move forward.

It will depend if they had a search warrant, the age of your son, and possibly other factors. It is also depends if exigent circumstances existed to not require a search warrant. I would highly recommend that your son hire an experienced criminal defense attorney or request a Public Defender. A criminal defense attorney who regularly practices in the court where your son's case will be heard can make a difference in the outcome of your son's case.

That will depend on whether the police had a warrant or were given permission to enter and search by the home owner (although there are limitations to searching his room).

Assuming this is a shared apartment (not a dorm), where son has his own room that is not shared with anyone else and he has the right to keep people out of, then consent to search that room by anyone else is not valid. If the police entered the room based on a reason other than consent, such as items in plain view, or a search warrant, then possibly valid.

If the Authorities had a Search Warrant, or your son was on Probation or Parole, thus having no right to object, the search would be legal, since his presence is not necessary to conduct the search, if otherwise legal.

You cannot search without permission or warrant. If they did not have either then the search is bad.

It depends. You'll need to provide more information. They may have had a warrant, or, more likely, someone that was there consented to the search. You need to speak with an attorney.

It depends if they had a warrant for a search, and if not, if someone was foolish enough to allow the cops to do a search consensually.

Possibly. It depends upon whether someone with apparent authority or actual authority consented to the search. This is a legal standard that needs to be analyzed based upon the circumstances of law enforcements actions.

If they had a warrant that authorized the search, then it was proper. Also, if someone let them into the home so they could search it, even without a warrant, the search was proper. You have given me no facts to provide any more definitive answer.

The occupant of a residence need not be present in order for a valid search warrant to be served.

Challenging the validity of a search may often result in the suppression of evidence resulting from the search. Whether or not a search is valid, or whether arguments exist that it was a violation of the fourteenth amendment and State constitutional protections, requires a full review of the facts of the case. Accordingly, you would be wise to hire an experienced criminal defense lawyer. As a general rule, law enforcement may make a search pursuant to a valid search warrant whether any person is home or not. They cannot,however, exceed the scope of the warrant. law enforcement may not make a search without a valid warrant supported by probable cause. There are, however, numerous warrant exceptions including cases where contraband is in plain sight, where the search is related to officer safety, or where exigent circumstances exist supported by additional probable case.

Does not appear under these facts to be legal unless the officers had a warrant or a person with authority authorized it or some other exception.

The search might or might not have been illegal, but whether or not he was home at the time of the search does not generally matter.