Illegal Search and Seizure FAQ

The Fourth Amendment to the United States Constitution protects individuals against unreasonable government searches and seizures. The Fourth Amendment protection applies to searches performed by government agents, such as police officers, public school administrators, and postal workers. The U.S. Supreme Court has clarified the Fourth Amendment rights and protections through its opinions.

Below are some of the most common questions regarding police searches of a home, a car, or a person.

Frequently Asked Questions

• What if I refuse to allow a search?
• Will charges be dismissed because of an illegal search?
• At what point are police considered to be searching"?
• Can police get to private possessions?
• How do police obtain a search warrant?
• What powers do police gain from a search warrant?
• Are search warrants required for every search?
• Who can provide consent to search a home?
• What can the police search during a traffic stop?
• Can the police search a vehicle that they towed?

What if I refuse to allow a search?

If a police officer asks to search your person or property, you can deny or consent to their request. Unless special circumstances apply, the law enforcement officer should respect your right to refuse the search.

However, the officer may disregard your refusal and search without a valid warrant. This search will likely be unlawful. A government search absent a valid search warrant is presumably unreasonable. Due to the fruit of the poisonous tree doctrine, the court will exclude any illegally obtained evidence derived from an unlawful search.

Regardless of how an officer reacts to your refusal to allow a search, providing any physical resistance to a search will likely result in temporary detention or even an arrest.

Will criminal charges be dismissed because of an illegal search?

The court will not necessarily dismiss your charges and criminal case if the police perform an unlawful search. However, the court may suppress evidence the government obtained illegally during their criminal investigation at the criminal trial. This exclusion may lead to the dismissal of charges.

An illegal search is not a grant of immunity from prosecution. Police might have enough evidence to support a conviction despite the court's exclusion of evidence. Alternatively, they may find some exception to the exclusionary rule. Such an exception would allow them to present the evidence uncovered during an illegal search.

At what point are police considered to be searching?

Police conduct a search when they are looking for evidence or contraband. When challenging the validity of a search, the court will consider two questions:

1. Was the person whose home, car, or property was searched expecting a degree of privacy?
2. Was that expectation of privacy reasonable (usually based on societal attitudes)?

The reasonable expectation of privacy distinguishes what makes a warrantless search unreasonable. A person must have a legitimate expectation of privacy to benefit from their constitutional protections against unreasonable searches and seizures.

The plain view doctrine is the other side of this coin. Contraband or evidence easily visible to an officer standing outside a vehicle during a traffic stop or at the front door of a residence is an example of "plain view." 

Can police get to private possessions?

The Fourth Amendment protects the right of people "to be secure in their persons, house, papers, and effects." Thus, possessions stored in a house, dwelling, or other building are generally considered private. If the police have to enter a building to see something, they generally need a search warrant.

However, there are situations where police can search and seize property without a warrant. Timely searches to prevent the destruction of evidence are allowed because the situation demands prompt action. These are known as exigent circumstances.

Law enforcement officers have been allowed to take aerial photographs from above a home. However, new drone technology has made this controversial, as the quality and precision of drone photography seem to intrude upon privacy. Low-flying drone photography could trigger the requirement for a warrant.

Law enforcement can also use technology to eavesdrop on conversations, but courts have set limitations. When listening to conversations, police cannot use equipment like wiretaps to listen in private places without having a warrant. Otherwise, that act of surveillance is considered an illegal search.

Generally speaking, the more sophisticated the listening or photography equipment, the more likely it will be that the police must obtain a warrant to use it.

There is, of course, a consent exception. When a suspect consents to a search, they waive their right to challenge the search, even if the officer discovers evidence. Additionally, suppose an officer is present on private property for a legitimate reason (perhaps in hot pursuit of a felon). In that case, any contraband in plain sight is fair to seize, even without a search warrant.

How do police obtain a search warrant?

A search warrant is a written order issued by a judge or magistrate. It gives law enforcement permission to search a location or a person. A search warrant also permits law enforcement to seize evidence, people, contraband, information (digital or paper), and biological material. Some warrants permit police to use electronic surveillance devices.

The warrant is typically addressed to law enforcement, informing officers:

• Where they can search
• When they can search (for example, during business hours)
• When the temporary authority to search expires
• What types of items or people the warrant covers
• Any special search conditions

Generally, law enforcement agencies must apply for a search warrant before searching a person or premises. Police must show the judge that:

• There is probable cause that a crime occurred.
• Evidence or contraband linked to that crime will likely be found in the named location. The police must describe the location with enough detail to limit the scope of the search.

Police must provide information based on their observations or the observations of others, including informants. If the police rely solely upon the observations of others, they must be able to demonstrate to the judge that the information is reliable. This could include police corroboration of the secondhand observations or the prior reliable history of observations from a named informant. Police may have to file an affidavit with the court to obtain a search warrant.

What powers do police gain from a search warrant?

A search warrant gives the police the legal authority to enter specified premises without the owner's permission. They have permission to search for the evidence listed in the warrant in the places the warrant authorizes.

For example, if the search warrant allows the police to search the bathroom of a home for illegal drugs, then the police must confine their search to the bathroom.

There are exceptions to this search warrant requirement. These exceptions routinely allow police to conduct a wider search than allowed by the written search warrant. Common exceptions are:

• Police can search beyond the scope of the search warrant to ensure their safety and the safety of others.
• Police can search widely to prevent the destruction of evidence.
• Police can look for evidence beyond the scope of the original search warrant because their initial search revealed that there may be additional evidence in other locations on the property.
• Police may search for more evidence based on evidence that is in plain view.

The seized evidence may be admissible even if a court subsequently determines a search warrant is invalid. This exception is known as the good faith exception to the warrant requirement.

Are search warrants required for every search?

No, not every warrantless search is illegal. Some situations in which law enforcement does not need a search warrant to search include:

• Consent: If the police show up at a person's door and enter the home, the police do not need a warrant if the resident allows them in. Consent must be freely given, not coerced, and can be withdrawn at any time.
• Emergency, or Exigent, Circumstances: If the police arrive in an emergency, they may not need a search warrant. For example, if the police are pursuing an armed suspect in a small neighborhood, they may not need a search warrant to search homes because the suspect could be putting residents at risk.
• Vehicle Inventory Search: When the police legally impound a vehicle, they can perform a standard search of its contents to document any valuable possessions. Such a search is considered reasonable even without a warrant. They can seize any evidence or contraband they find during that search.
• Searches Incident To Lawful Arrest: After police arrest a suspect, law enforcement may search a person and their immediate surroundings to look for weapons that could endanger officers or others.
•  Plain View: Police do not need a search warrant to seize evidence in plain view of a place where the police are legally authorized to be.
• Automobile Exception: Law enforcement can search a motor vehicle without a search warrant when they believe the vehicle contains evidence of criminal activity, and the evidence likely will be destroyed if the officer had to obtain a warrant.
• Stop and Frisk: Police may perform a limited search of a person on the street if the officer has a reasonable suspicion the person has committed or will commit a crime.

If the government searched your person or property, consider contacting a criminal defense attorney near you.

Who can provide consent to search a home?

Generally speaking, any person using and controlling an area can permit the police to search it. Who has use and control? The following criteria apply:

• Do they have possession of a key?
• Do they claim residence there?
• Is that address listed on their ID card or driver's license?
• Do they get mail or bills at that address?
• Do they keep clothes there?
• Do they have children that live there?
• Do they have personal belongings or pets there?
• Do they perform household chores at that residence?
• Do they pay rent or have their name on the lease?
• Are they allowed in the home even when the owner is not present?

If the police have a reasonable belief that the person who gave permission has control over the area searched, the search is legal. Even if the person is simply a dating partner with no legal rights to a home, if they have permission to be on the property when the owner is not present, they could give consent to search the home.

A landlord, however, cannot give legal permission to the police to search any part of a leased apartment. They can only permit law enforcement to search a common area, like a laundry room in an apartment building.

What about a hotel room? Even though hotel staff can enter a hotel room for cleaning or other ordinary purposes, a hotel manager typically cannot give police permission to search an occupied room.

What can the police search during a traffic stop?

Because one's expectation of privacy is lower when operating a vehicle on a public roadway, police can search a vehicle.

During a traffic stop, an officer can order the driver and passengers to get out of the vehicle and can frisk them if they believe they may be armed. In addition to frisking for weapons, the police can seize other contraband, like drugs, found during the search.

The U.S. Supreme Court ruled that police can search the passenger compartment of a car if the driver is arrested and had access to that part of the vehicle or if the vehicle contains evidence of the offense.

The Supreme Court also ruled that officers can search a vehicle without a warrant if they had probable cause to believe it contained contraband. Passengers may be exempt from searches if there is no probable cause that they possess contraband or evidence of a crime.

Can the police search a vehicle that they towed?

If the police towed and impounded a car after a traffic violation or similar arrest, they can search the vehicle. It does not matter if they impounded the car for a parking violation or if it was stolen. The police can search any car that they impound.

Police cannot tow and impound a car for the sole purpose of searching it. Moreover, the search must comply with the standard procedures of the police agency. For example, if they do not usually search the glove compartment, an officer cannot search the glove compartment.

Get Legal Help If You Have Suffered an Illegal Search

An attorney can provide critical legal advice if a prosecutor charges you with a crime following a search. Contact a local criminal defense attorney to discuss your situation and get personalized legal advice. An experienced criminal defense lawyer can provide you with information regarding:

• Criminal law
• Your constitutional rights regarding governmental searches and seizures
• Legal advice regarding law enforcement's search of a vehicle following a DUI

Consider contacting a criminal defense attorney if police searched you or your property.