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Somewhat influenced by this question.

This is hypothetical question. Suppose the police turn up at my door with a search warrant. I know nothing about warrants and couldn't tell apart a search warrant from a supermarket receipt. But I do have a lawyer who knows these things. Can I somehow make the police wait until I call my lawyer, and the lawyer arrives and examines the warrant - before the search proceeds?

Any jurisdiction is fine for this question.

Added: Thank you to all those that replied and commented. So, it sounds like (just as I thought), I can ask - and they can ignore.

Aleks G
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    "Can I somehow make the police wait until I.." knock knock – iLuvLogix Mar 02 '23 at 18:15
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    @user253751 No knock warrants are still a thing in the United States (whether they should be is another matter) but in the U.S. police can be authorized to serve the warrant by kicking in your door in the middle of the night. It's often done if they think it's likely you will stall to destroy the evidence they believe they'll find (i.e. flushing the drugs down the toilet in the limited space between then knocking and announcing themselves and the time they decided that they've done being polite about serving the warrant. Or if they feel like you're going to fight them with lethal force.) – hszmv Mar 02 '23 at 19:21
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    @hszmv Parts of the US. They have in fact been banned in many jurisdictions. The law is a patchwork on a state-by-state or even municipal level. – Darrel Hoffman Mar 03 '23 at 16:48
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    @DarrelHoffman I'm well aware, and trust me, I would include that in an answer. I have limited space to cover stuff in a comment and felt explaining the reason they're used was a better use of that space. – hszmv Mar 03 '23 at 17:59
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    @hszmv - I don't think they even bother with the fig leaf of "you may destroy the evidence before they get it" anymore, judging from news reports the last couple of years. In situations where the other one, "you'll respond with deadly force" also doesn't seem to apply. (Not to get into the idea that the best way to prevent a response with deadly force is to not wake up an innocent but armed - and scared! - person in the middle of the night by kicking his door in. Sigh.) – davidbak Mar 04 '23 at 18:03
  • AFAIK if the warrant is invalid anything that is found at your place cannot be used as evidence.. then again, not sure what would happen if they enter your place with an invalid search warrant and find cadavers/people raping other people etc... I guess they would still be able to do something about that even if they saw those crimes via an invalid warrant. – Bakuriu Mar 05 '23 at 09:52
  • @Bakuriu if police have reasonable suspicion that a crime is being comitted or evidence is being destroyed then that beats the need for a warrant. The credibility of that reasonable suspicion will be contested at the trial though. – Neil Meyer Mar 06 '23 at 11:27

7 Answers7

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You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is "proper" (has the judges name, correct address, is a search warrant and not a warrant of removal/deportation...). Calling a lawyer is always wise, but that does not stop the search.

user6726
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    This needs to be qualified with a jurisdiction (country/state) and probably some sources. – jcaron Mar 03 '23 at 12:20
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    @jcaron While good advice, I would be surprised if there are any jurisdictions where what user6726 said is not true. – Ben Hocking Mar 03 '23 at 13:27
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    @BenHocking I'm far from convinced that "They can search even if you are not present" is universally true, though this would of course be the topic for another question. – jcaron Mar 03 '23 at 17:46
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    Would it help to clarify that even if they're holding a bad (or no) warrant, you can't legally stop the police from searching. Instead, the consequence of not having a proper warrant is that any evidence they find in the search might be inadmissible. But that is determined long after the search in a courtroom. – Todd Wilcox Mar 03 '23 at 22:11
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    @ToddWilcox: What if you're at 742 Evergreen Terrace and the warrant is for 744 Evergreen Terrance? – supercat Mar 04 '23 at 19:44
  • @ToddWilcox any person who deprives another person in the US of a constitutional right opens him/her up to a civil lawsuit. A section 83 as it is known. Although police enjoy limited liability they are by no means immune from this. The higher bar that you must prove is that the constitutional right must be clearly established. You can sue the police person in his/her private and professional capacity. A police person who enters your house without a warrant risk much more than just evidence. – Neil Meyer Mar 06 '23 at 11:37
  • @supercat You go through with 742 Evergreen Terrace because if you're taking out a warrant for a house in the 740 block of Evergreen Terrace, it's going to investigate the one that has Homer and Bart, not Ned Flanders (yeah he's the devil in the Halloween episode, but those are not canon). – hszmv Mar 09 '23 at 19:16
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You can certainly call your lawyer when the warrant is served but the police are going to seize the evidence they want to since the warrant is at this stage considered valid. There are several avenues during various stages of the legal process where the warrant can be contested in courts, since any incriminating evidence will be communicated to the defendant and its admissibility in a trial will be determined prior to a jury ever being empaneled.

hszmv
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  • I understand that the police would want to ensure that I don't tamper with the evidence - so my question deals with the case where police secures everyone present in the property - but not continuing with the search until a lawyer is present. – Aleks G Mar 02 '23 at 19:42
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    It's probably worth pointing out that if the search warrant turns out to be invalid, any evidence found under it is almost certain to be excluded. – DJClayworth Mar 02 '23 at 20:13
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    @DJClayworth if it's in the [tag:united-states], then any evidence derived form what they found with the bogus warrant will also be excluded because of the "Fruit of the Poisonous Tree" doctrine. Of course it requires a motion to dismiss. – Mindwin Remember Monica Mar 03 '23 at 12:10
  • @AleksG, I don't see how the specifics you describe make a difference to this answer. – John Bollinger Mar 03 '23 at 13:02
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    @AleksG But how would they know if they secured everyone present on the property without searching the property? As hszmv said, getting a lawyer to verify the warrant is a good idea, and if you have any concerns at all, be sure you don't give the police any permission to search beyond what is covered by the warrant (so perhaps say nothing at all, if in any doubt). – Ben Hocking Mar 03 '23 at 13:28
  • @AleksG Also, quickly securing everyone to prevent tampering does not go hand in hand with a polite conversation at the door about waiting for a lawyer. If they have concerns about tampering then it's unreasonable to expect them to wait while you round everyone up and claim everyone is there. If anything, they would just forcefully enter, round everyone up and then you might be able to ask them to wait for a lawyer. It's not clear what scenario you had envisioned, – DKNguyen Mar 03 '23 at 15:19
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    @DJClayworth: It's not just about evidence. The police might damage property in the process of the search, deprive the person of property they need to go about their everyday life (especially high risk in the digital age), or seize items for civil forfeiture or on the basis of claiming they're illegal/contraband. Even if the search is later ruled invalid and the evidence inadmissible, you won't get this stuff back and you will suffer whatever losses result from being temporarily deprived of any things they eventually return. So OP's question makes a lot of sense. – R.. GitHub STOP HELPING ICE Mar 03 '23 at 17:16
  • @R..GitHubSTOPHELPINGICE having a lawyer present will not stop the police from doing anything you listed – Doryx Mar 04 '23 at 02:20
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    @Doryx: It might keep them from searching beyond the scope of the warrant, preventing them from finding those things. Especially if the lawyer is reminding them of the scope as they keep trying to violate it and you're recording, to make it extra clear that they know they're violating the scope and doing it anyway. I think it's very, very plausible to claim that things go a lot better for the person whose premises are being searched when they have a lawyer present. If nothing else it signals power dynamics to the police. – R.. GitHub STOP HELPING ICE Mar 04 '23 at 02:46
  • @R..GitHubSTOPHELPINGICE Why wouldn't the police be extra thorough within the boundaries set by the warrant if they see a lawyer hassling them? For example, instead of spending 1 hour searching they could spend 3 hours combing through everything allowed. – M. Y. Zuo Mar 09 '23 at 19:04
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Your protection from unauthorized searches is granted through inadmissibilty of evidence not through preventing the search. So if the police show up at your door and only present a supermarket receipt they can still search your apartment. But the 2 pound bag of cocaine found on your living room table will be excluded from evidence because the search was invalid.

Hence from the police perspective showing you an invalid search warrant is a very bad idea because it would invalidate any possible evidence they find. They would be better off not searching your place and not knowing about it because then it still exists in principle and may possibly be found later with a valid search warrant. If they have seen it with an invalid search warrant the evidence is lost legally.

quarague
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    While correct, it does not answer the question if you can tell them to "Wait 15 minutes, my lawyer got to be present" – Trish Mar 03 '23 at 09:08
  • @Trish it does by implication. Not even a fake warrant will keep the police from searching, much less the need to call a lawyer. – Mindwin Remember Monica Mar 03 '23 at 12:12
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    "Hence from the police perspective showing you an invalid search warrant is a very bad idea", except if they want to harass you. – Lichtbringer Mar 03 '23 at 12:48
  • I do wonder whether the police ever trick someone into providing consent to search by getting a very narrow warrant of some kind (e.g., arrest for someone who might be at the premises) and then getting the person on the premises to reluctantly assent to a search. NB: IANAL. – Ben Hocking Mar 03 '23 at 13:32
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    The first two sentences of this answer are wildly inaccurate. Exclusion is a final remedy, not the primary deterrent. The idea that police can just go wherever they want, and there's no recourse other than excluding evidence they find is absurd. Entering a residence without a proper warrant or consent is burglary, and it opens the police up to criminal and civil charges, and can in some cases give the resident the legal right to shoot the police. – Acccumulation Mar 04 '23 at 01:10
  • Are there example of cases that have been tossed in their entirety (with prejudice) due to fruit of the poisoned tree? Say an illegal search unequivocally proves a specific person is guilty in such a way that any investigation of that person can not be isolated from the search? Or is parallel construction too effective at getting around that? – BCS Mar 28 '23 at 03:17
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Jurisdiction :

The police does not have to wait, but common advise is to call a lawyer or at least a neighbour to act as a witness and ask the police to wait.

The common principle of commensurability applies to search warrants as well. So unless there is immediate danger (e.g. of you or someone else making things disappear) they might wait, especially if it's just a few minutes. While no specific law forces them to do so, not waiting a few minutes when it would not hinder them to do so opens them up to legal challenges on those grounds. Calling a lawyer also gives an opportunity for the lawyer to talk to the police by phone, even if arriving at your place takes time.

Sidenotes:

  1. In Germany, there are restrictions on time, the police can't serve a search warrant in the middle of the night, unless they convince a judge of immediate and urgent danger.
  2. German search warrants also have to state what is to be searched and seized and again the principle of commensurability prohibits police from searching or seizing other things. That's why lawyers generally advise you to just hand over or show them where to find what they're looking for, which minimizes the mess they'll cause.
  3. Fun fact: If they break your door, or otherwise damage your property, they have to pay for the damage, if it exceeds 25 Euros.
Tom
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Jurisdiction:

You can ask a police person anything. They are not legally obliged to wait, but yes you can ask them just about anything. As always, it is best just to do whatever the person with the gun tells you to do. Dead people cannot sue

You have a well established constitutional right to film police while on duty. You are also not required to leave the premises while they do the search. It would be prudent to have them explain the exact details of what the warrant entitles them to do and film them while they do it.

As always there are a slew of ways in which a warrant can be invalidated, but none of them can happen when they search your place. You can beat the wrap but not the charge.

Whether what police do is legal or not there is basically nothing you can do to prevent a police person from doing whatever they like. They truly are a law upon themselves.

Clockwork
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Neil Meyer
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My understanding is that the police do not have to wait; however, it seems likely that if the police searched your apartment under the auspices of a supermarket receipt, not only would the evidence be inadmissible but you'd have a cause of action for civil damages under Section 1983.

djilk
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    What's section 1983? –  Mar 04 '23 at 08:05
  • https://www.law.cornell.edu/uscode/text/42/1983

    In many jurisdictions this is limited by qualified immunity for the police, but in clear cases like the example given it is unlikely to be a successful defense.

     – djilk Mar 04 '23 at 14:29
  • Unless or until Courts start actually honoring the Constitution, winning a 1983 lawsuit against a cop with a supermarket receipt would require the existence of case law saying a supermarket receipt is a not a valid warrant, since otherwise the insufficiency of a supermarket receipt would not be "established law". – supercat Mar 04 '23 at 19:48
  • @supercat the fact that police need a valid warrant to enter your house is one of the most widely established constitutional laws there is. – Neil Meyer Mar 05 '23 at 06:54
  • @NeilMeyer: Yes, but "qualified immunity" rules have been stretched so far that a cop who claimed he thought the supermarket receipt was a valid warrant may have a non-zero chance of getting away with claiming that there's no "established law" to the contrary. – supercat Mar 05 '23 at 22:55
  • @supercat I agree with you on abuse of qualified immunity, particularly the catch-22 that it can only be overcome with "clearly established" precedent but then none of the cases get through to establish it. However, most of these cases occur where there was no warrant issued at all, or there was a valid warrant alleged to be improperly obtained. If the cops used an actual supermarket receipt, that is evidence that they knew they needed a warrant but decided not to get one. – djilk Mar 06 '23 at 04:58
  • I should add that I am disappointed that on this answer, my very first on the site, where I added new information pertinent to the question, I got zero upvotes. Hmmm. – djilk Mar 06 '23 at 05:02
  • @djilk: Okay, I gave you an upvote since the mention of Section 1983 probably merits some praise, but from a practical perspective QI so throughly undermines Section 1983 that the likelihood of actually winning would seem remote no matter how outrageous the conduct. – supercat Mar 06 '23 at 07:26
  • @supercat thank you, and as I said I don't really disagree. It is however a cause of action, at least. – djilk Mar 06 '23 at 19:24
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Jurisdiction:

A lawyer can be present during a search, but does not have to, therefore the police are not obliged to wait for one (Criminal Procedure Code Article 182).

However, it may well be reasonable not to let the police in even if they are unfriendly and are insisting! Arranging contractors and equipment necessary for breaking into your house might take them much time. Use all of this time to find a lawyer, and open your door at the very moment you hear a hydraulic cutter start! You are unlikely to get any additional charges for that.

Alex Serenko
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