Search warrants must be obtained and properly executed by law enforcement officers in most cases. There is, however, an exception to that requirement and it occurs during a lawful arrest.
For example, when a law enforcement officer, including a police detective, makes a valid arrest, he may search the person and an area within an arm’s reach of the suspect without a warrant.
Officers have the right to protect themselves and a duty to make sure that the arrested persons do not harm themselves or anyone else with concealed weapons.
When an arrest occurs within a home and officers have reason to believe others might also be in the apartment or home, they can make a warrantless “protective sweep” of rooms, closets and other areas where a “person” might hide. That does not include drawers or places that are impossible for a person to fit into.
They cannot, however, legally “search” the premises for evidence without a search warrant. Should the officer making a reasonable protective sweep open a closet and see boxes of items believed to be stolen, or drugs, he must not touch them.
Instead, having secured the arrested person in jail with proper booking procedure, the officer will prepare an affidavit and attempt to obtain a search warrant to return to the location and seize the suspected contraband.
If the officer does not follow this procedure, the items seized are not admissible in court.
Situations may arise during an investigation that lead police to believe an individual may consent to a search of the premises. In these instances, the officer must secure proper consent from the person. A person who consents to a search waives his Fourth Amendment right to be free from search without a warrant.
The validity of a voluntary search remains at the discretion of the court. For a search to have validity, the detective must show from a “totality of circumstances” that the consent was voluntary. Most police departments make standard voluntary consent to search forms available to officers.