If the police have a warrant to search my house, can they search the backyard too?

The police had warrant to search my house, but took items they found in the backyard. Is this seizure valid?

Answer: The police can search only the place described in a warrant, and usually can seize only what the warrant describes. The police cannot search a backyard if the warrant specifies a house, nor can they search for weapons if the warrant specifies marijuana plants.

However, this does not mean that police officers can only seize items listed in the warrant. Should police officers come across contraband or evidence of a crime that is not listed in the warrant while searching for stuff that is listed, they can lawfully seize the unlisted items. For example, if you admitted the police to your backyard after they showed you their warrant, and while walking to the house the officers saw marijuana plants, they would be able to seize those plants.

The rule that police officers can seize items not listed in a search warrant in the course of searching for items that are listed creates obvious disincentives for police to list all the items they hope to find. For example, perhaps a police officer suspects that a defendant carries a weapon, but can’t establish probable cause to search for it. No problem. The officer can obtain a search warrant for other items, and then seize a weapon if the officer comes upon it in the course of the search. The defendant’s only hope of invalidating the seizure of the weapon would be to convince a judge that the officer did not just happen to come across the weapon, but in fact searched for it.

For example, assume that a search warrant authorizes police to search for shotguns. Carrying out the search, a police officer finds cocaine inside a small box in the defendant’s sock drawer. The defendant is arrested and charged with possession of cocaine. The judge might rule that the drugs are inadmissible in evidence and dismiss the charges, because the police officer searched a container that could not possibly conceal a shotgun. The outcome might be different if the warrant authorized a search for shotguns and ammunition, however. This authorization would legitimate the search of the box, as long as it was big enough to hold shotgun shells.

This question and answer was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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