18 USCS § 2236 (2001)

 § 2236.  Searches without warrant   Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or property without a search warrant, shall be fined for a first offense not more than $ 1,000; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both.     This section shall not apply to any person--     (a) serving a warrant of arrest; or     (b) arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony; or     (c) making a search at the request or invitation or with the consent of the occupant of the premises.   HISTORY:     (June 25, 1948, ch 645, § 1, 62 Stat. 803.)     (As amended Oct. 11, 1996, P.L. 104-294, Title VI, § 601(a)(8), 110 Stat. 3498.)   HISTORY; ANCILLARY LAWS AND DIRECTIVES     Prior law and revision:     This section is based on Act Aug. 27, 1935, ch 740, § 201, 49 Stat. 877 (former 18 U.S.C. § 53a).     The words "or any department or agency thereof" were inserted to avoid ambiguity as to the scope of the section. (See definitive 18 USCS § 6.) The exception in the case of an invitation or the consent of the occupant, was inserted to make the section complete and remove any doubt as to the application of this section to searches which have uniformly been upheld. Reference to misdemeanor was omitted in view of definitive 18 USCS § 1. The words "upon conviction thereof shall be" were omitted as surplusage, since punishment cannot be imposed until a conviction is secured.     Minor changes were made in phraseology.      Amendments:     1996. Act Oct. 11, 1996, in the first undesignated paragraph, substituted "fined under this title" for "fined not more than $ 1,000".   NOTES:                                    CROSS REFERENCES     Search by person impersonating officer, 18 USCS § 913.     Minor offenses tried by United States magistrates as excluding offenses punishable under this section, 18 USCS § 3401.     Unreasonable searches and seizures prohibited, USCS Constitution, Amendment 4.                                      RESEARCH GUIDE   Federal Procedure:     12A Fed Proc L Ed, Evidence § 33:610.      Am Jur:     68 Am Jur 2d, Searches and Seizures § 326.      Annotations:         Officer's ruse to gain entry as affecting admissibility of plain-view evidence. 47 ALR4th 425.                           INTERPRETIVE NOTES AND DECISIONS   1. Places protected   2. Factors considered; malice   3. Justifiable or reasonable cause   4. Particular searches as violative; search pursuant to arrest   5. Search pursuant to invitation   6. Question of law   7. Suppression of evidence illegally seized          3. Justifiable or reasonable cause         Belief, however well founded, that article sought was concealed in dwelling house, furnished no justification for search of that place without warrant. Lindsly v United States (1926, CA5 La) 12 F2d 771.     Smell of opium fumes coming from laundry justified search of premises without search warrant, and such search would not violate predecessor to 18 USCS § 2236. Lee Kwong Nom v United States (1927, CA2 NY) 20 F2d 470.     4. Particular searches as violative; search pursuant to arrest     Officers searching dwelling after making arrest in front of it were guilty of offense under predecessor to 18 USCS § 2236. Poulos v United States (1925, CA6 Ohio) 8 F2d 120, 4 Ohio L Abs 174.    6. Question of law     It would be judicial question to be determined in each individual case whether or not search and seizure of automobile would be malicious or without reasonable cause, thus violating predecessor to 18 USCS § 2236 or other statutes. United States v Bateman (1922, DC Cal) 278 F 231.