There is absolutely no way for me to even begin to discuss the scope of search and seizure in a brief article. But recent developments in both technology and rulings from the US supreme court have changed search of seizure law. The 4th amendment to the United States Constitution provides, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…describing the place to be searched and the persons or things to be seized.”
Search and Seizure Law
Your 4th amendment right only applies to law enforcement (police) action. If a store security guard, a neighbor, or landlord to name just a few entities, conducts a search, they may have violated a law or may open themselves up to a civil lawsuit. But, they have not violated your 4th amendment right.
Reasonableness in a Search
The search must be reasonable.What is reasonable is always a source of debate. However, for more than 200 years, the courts have tried to define “reasonable.” Police can’t normally search for stolen bicycles in a film canister, but may be able to search anywhere if looking for drugs. Each search needs to be challenged on the reasonableness standard. A warrant may not be used for a fishing expedition by police. Police must have some idea of the item(s) they are looking for or the person being targeted. As with reasonableness, good counsel may be able to attack a warrant for being too general.
Probable Cause in a Search
Any government search must be based on a warrant supported by probable cause. A warrant is nothing more than a court order permitting the search. The warrant must specifically state the person and item to be subject to any search. While officers will deliver a warrant to the person being searched, the actual statement supporting the warrant is called the affidavit. The affidavit must contain current information from reliable sources. If the information is old, or the sources less than trustworthy, the warrant may be challenged.
Exceptions to Warrants
Finally, although the constitution requires a “warrant,” our supreme court has crafted numerous exceptions to the need for a warrant. These warrantless searches are permitted within certain circumstances. Common exceptions occur if the search is incident to arrest, or if the evidence is in plain sight, smell, or touch. This type of search is frequently conducted when officers smell marijuana, or feel a pipe in someone’s pocket. If the search is incident to arrest, the search may extend to your person, your vehicle (so when getting out of the vehicle, lock the door).
Exigent circumstances can also result in a legal search. Frequent types of exigent circumstances are hearing screams from a locked room, or arriving to hear the ongoing argument, preventing injury or rendering obvious aid to an injured person, following a suspect who has just committed a crime (hot pursuit), or a failure to immediately act could result in the destruction of evidence. This is often the basis for acquiring a warrant to draw blood in a DUI case.
The easiest exception for police is to simply ask for your consent to search. Never consent to any search. This includes a search of your home, car, or your person. If officers do not have probable cause, why would you allow them the chance to find something? Why would you let the government actually enter your life? Do you really know what the officer’s are looking for? Do you really know what is in your car? Have you let your teenager or their friends in your car? Do you really want to take a chance?
It really takes intestinal fortitude to refuse consent. You aren’t going to make the officers happy. Most officers play by the rules. You don’t have to make it easy for them.
If subject to any police contact or search, record the contact on your phone. An audio recording is better than nothing. Make no admissions, use proper respect and language and don’t lie. You only need to give the officers the information on your license: name, address, birthday and your registration insurance. Do not engage them in any other conversation.
Recent rulings from the supreme court prohibit officers from searching your cell phone without a warrant. Your phone should be password protected. And, unless they have a warrant, don’t give them your password.
Search and seizure law is very complex. I have not even touched upon arrest warrants, investigatory detentions, terry searches (pat-down by police), and searches by border patrol or immigration.
I have successfully defended thousands of felony and misdemeanor cases for more than two decades. When you are the target of an investigation, please don’t hesitate to call.
Howard Snader is a board certified criminal law specialist. If you or anyone you know has been accused of any crime, please give call him at 602.957.3300, email him at firstname.lastname@example.org or visit his website at www.snaderlawgroup.com.