Ordinarily a peace officer, regardless of whether he works for the Federal Government, State, County or Local Police Departments, must have a search warrant or an arrest warrant in order to enter your home, unless you consent. A residence can be a home, an apartment, a mobile home, a house trailer or even a tent. The rules regarding when an officer may enter are the same. The rules are also the same regardless of whether the owner, a renter, or simply a guest who has the permission of the owner to be in possession, are in the residence.

No warrant is required where consent to search or enter is given by someone who has the right to give consent. The owner of the residence can give consent to enter but so can a renter for the rented property, or a guest with permission to be in possession of the residence. Two or more people may have joint possession of property and, therefore, each may have the right to consent to the search of the property. However, a friend, a neighbor, or even a relative, who does not have the permission of the owner to control the residence, may not consent to any entry by police or to a search. Peace officers may also enter a residence without a warrant, it they are in hot pursuit of a person who has committed a felony.

The police will usually have one of two kinds of warrant. They may have a search warrant for a described residence or person, or an arrest warrant for a person they have probable cause to believe is in the residence. When a warrant is served, the police must knock and announce their authority for entering, and their purpose in entering the property, before they can enter. They must give whoever is inside the residence a reasonable amount of time to respond. If the people inside the residence do not respond within a reasonable time, or there are reasonable grounds to believe they are destroying evidence, the police may break into the residence.

If peace officers wish to enter your residence, you have a right to ask to see the warrant upon which they rely. If it is a search warrant, it should describe the residence giving its address and apartment number, it any. Peace officers may not legally search a residence which is not described in their warrant.

If it is an arrest warrant, the person who is to be arrested should be named or described in detail. If the person named in the warrant is not a person who owns or lives at the residence, the officers must have some reason for believing that he or she is inside before they may legally enter.

All warrants must be signed by a magistrate or judge. The warrant must be served within a reasonable time after it has been issued, and no more then five days after it is issued.

When the warrant is served, the officers must look for the item or person described in the warrant. They may not search for an item in a place where it could not be. For example, if they were searching for a stolen car, they could not search the cupboard and clothes closet of a residence. Similarly, peace officers may not search individuals who are not named in the warrant, unless the person gives them probable cause to believe they are committing a crime by doing something in the presence of the peace officers such as possessing drugs or committing an act of violence. Peace officers may enter a home with a warrant without knocking if they are in hot pursuit of a person named in the warrant, or if they have reasonable grounds to believe that a person inside the residence is in danger.

If a search is conducted of your home, the peace officers are required to make an itemized list of everything they seize during the search. You have a right to receive such a list if you are the owner or person in possession of the residence.

Peace officers are not required to advise you that you have the right to refuse to consent to a search without a search warrant. Nor do you have the right to be advised by peace officers that you can call and confer with an attorney before or during the time that peace officers enter and search a residence. Whenever a warrant of any kind is served upon your home, or whenever peace officers wish to enter and search your home, you should consult an attorney to determine what your legal rights and responsibilities are.

You may not forcibly resist peace officers who go beyond their legal right entering and searching your residence. You may only resist a peace officer if the officer has become so physically abusive in arresting or searching you that it is reasonable to believe that you may be seriously injured or killed by the peace officer. Otherwise, the only remedy that you have for the illegal entry and search of your home by peace officers, is to file a lawsuit for damages against the peace officers and their superiors.

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The information available through TBALink LawBytes is basic legal information and is not a substitute for legal advice. LawBytes is provided by the Tennessee Bar Association as a public service and for general information only. It should not be considered legal advice. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you contact your local bar association's referral service. The topics covered through TBALink LawBytes will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.