Whenever, there is an apprehension that a person may be a suspected culprit, or he or she has certain materials at their place of residence, the magistrate issues a search warrant against that person. It gives legal authority to a law enforcement officer to search for that particular person, their house, or vehicle. In this post, I will share if Police can search your premises without a Search Warrant?
Can the Police Search Your Premises without a Search Warrant?
- Types of Offences for a search warrant
- How can Police officers get a search warrant?
- Special Conditions under which Police may not need a search warrant
- Things to Know When Police Conducts A Search Without A Warrant
Types of Offences for a search warrant
There are two kinds of offenses: Cognizable offense and Non-Cognizable Offence.
- Cognizable Offences: It is the one that is serious and grave and allows the Police to arrest a person without a warrant—for example, murder, rape, dowry death, etc.
- Non-Cognizable Offences: These are comparatively less serious, and no arrest can be made without a warrant—for example, assault, mischief, public nuisance, etc.
How can Police officers get a search warrant?
To get a search warrant, it is the responsibility of the police officer to convince the judge about the high chances of getting crucial evidence at that particular place. Once the judge is satisfied, they will issue the search warrant, which should contain every pertinent detail of the search, including the location, date, and time of the search.
Related: Can a Police arrest without a warrant?
Special Conditions under which Police may not need a search warrant
Now the question here is, can the Police search anybody’s house without a warrant? The answer to this question is ‘Yes’. The Police or any law enforcement officer has the right to enter the premise of a person, which could be either his place of residence or work without having a proper search warrant. But these situations occur in minimal circumstances. Following are some of those exceptional/ limited circumstances:
- If the officer in charge of an investigation has a reasonable ground to believe that the person is in the custody of such materials/evidence, which is crucial and pertinent for the case, furthermore, it is also thought that any kind of delay in obtaining that particular evidence could affect the investigation process.
- This search must be conducted in the presence of the police officer.
- If, due to any unavoidable circumstances, the officer in charge is not present at the time of this search, he should submit his reasons in writing and further order any subordinate officer to carry forward the search.
- If in case, the police officer is outside the house in which such a search is taking place by any subordinate officer of Police, this would not make the search illegal.
Another frequently asked question in this regard is whether the procedure of search and seizure infringes the basic fundamental right of privacy of any person or not? The answer is no; it does not.
The Supreme Court of India held that the search and seizure is just a temporary interference in the private space of a person with the right to hold premises searched and the articles seized. Thus, there is no question of violation of Articles 19, which says Freedom of Speech and Expression.
Things to Know When Police Conducts A Search Without A Warrant
- If the court says that the search committed by the police officer is unlawful, then any material/evidence seized during such a search cannot be used against the person.
- The person who is being searched has the right to ask for the identification of the police officer. He can also ask the reason and explanation of that search.
- If the police officer searches an area that has not been mentioned or specified in the search warrant, the person can restrict the Police to search that particular area.
- However, in India, it is not generally advisable to restrict the police officer as the consequences may not be very good. The police officer can arrest you under the charges of obstructing the police officer on duty.
- The person can demand the police officer and his family and neighborhood to be present during the search.
- The best thing would be if the entire search can be video recorded to avoid any tampering with the evidence.
- The favorable advice in this regard would be to have a good lawyer whom the person can immediately call during the search as he would be well acquainted with the laws which a layman would not know.