While a person charged with possessing illegal drugs has several ways to defend against the charges, one of the most effective is demonstrating that the search for the drugs was illegal.
There are different standards for when police can search your car as opposed to when they can search your home. It is important to understand these differences.
When can the police search your house?
Not only the U.S. Constitution but also our Wisconsin state constitution prohibits illegal search and seizure. Before the police can search your home they must obtain a warrant from a judge. The standard for obtaining a warrant is fairly high and evidence seized without it is inadmissible. The main exception to this is a consent search: officers ask for and receive permission. A consent search is only legal when given freely and voluntarily by a person with the authority to do so. Police can also enter without a warrant if there is an ongoing emergency that requires their presence.
When can police search your vehicle?
The standards for searching your vehicle are different than for your home. A frequent situation involves officers pulling you over for a traffic violation, during which they decide they want to search your vehicle. Many drivers do not realize they have a Constitutional right to refuse a vehicle search. In order to proceed with a search, police must be able to demonstrate probable cause, which would mean observing drug paraphernalia in plain sight or smelling marijuana smoke.
While officers may attempt to intimidate you into allowing a consent search of your home or vehicle, you never lose your 4th Amendment right against illegal search and seizure.