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When can the Idaho police (fill in the blank)?

Craig Atkinson

A good number of the questions I am asked to answer as a criminal defense attorney in Boise, Idaho usually involve a question about what the police in Idaho are allowed to do. When can they search my car? When can they search my house? When can they stop my car? etc. etc. Of course there are no simple answers to these questions. It is a very complicated and convoluted area of law, even for seasoned attorneys. But the first rule you should know, and the rule that all attorneys and all judges start out with in their analysis, is what we legal professionals call the “Warrant Requirement.”

The Warrant Requirement comes from the Fourth Amendment to the United States Constitution. The Warrant Requirement is the requirement that a government actor (most often a police officer) cannot “search or seize” your “persons, houses, papers, and effects” without a warrant. A warrant must be signed by a judge, and a judge can only sign a warrant, if the warrant is supported by “probable cause.” (You probably want to know what probable cause is, I’ll answer that in a later post) Also the warrant must be particular, it has to specify “the place to be searched, or the person or things to be seized.” (Questions about the particularity of a warrant will also be answered in a later post)

The Warrant Requirement is not an absolute rule. The police do not need a warrant whenever they need to act. In fact, the circumstances in which a police officer needs a warrant may be less often than you think. The reason for this is the courts, both in Idaho and in the federal government, have created exceptions to the Warrant Requirement. So many exceptions in fact, that many would argue the exceptions have nearly “swallowed the rule.”

Now I apologize, because I know the above information is going to be of little help to you. It probably has created more questions than it has answered. And if I answered them all in this one blog post, the post would be extraordinarily long, and you probably wouldn’t read it. However, very important questions arise from this elusive requirement known as the Warrant Requirement, and those questions are probably the ones you want answers to, and probably the answers that you will find most helpful. Over the next several months I will be answering these important questions.

You may want to know:

You may be wondering why I would say “an Idaho police officer” rather than any police officer. Well this is Idaho, and I’m an Idaho attorney. Every state has its own criminal code, and so every state’s law is bound to be different. As an attorney, I am only licensed to practice in Idaho, and Idaho law is naturally my focus. I am also licensed to practice in federal court, and the federal courts have also chimed in on these issues, and many of their decisions are binding on the state courts.

So stay tuned. In the next few weeks several of these questions will be answered. Don’t be surprised though if the answers just lead to more questions. But in the meantime, keep in mind that if you believe that the police will always need a warrant to search your car, think again!

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