Search and Seizure

The Fourth Amendment to the U.S. Constitution protects citizens and criminal suspects from unreasonable searches of their property and persons. It also prohibits police officers from making unlawful arrests ("seizures"). Although this may seem straightforward, the law on these rights is not necessarily all that clear.

This section contains information on searches and seizures, what the law requires from police, what constitutes probable cause, and much more. It will also discuss what constitutes an unlawful search and seizure and explain what to do if you suffer a violation of the Fourth Amendment rights.

The Fourth Amendment and Warrants

The Fourth Amendment says people have the right to be secure against unreasonable searches and seizures. It also states that judges cannot issue a warrant unless probable cause exists. It is not enough that the officer had a reasonable suspicion that a crime had taken place. Law enforcement agents must respect the Fourth Amendment rights of the people and abide by search and seizure law.

This means that an officer can only search or seize a person or their property with a valid search warrant, a valid and lawful arrest warrant, or a belief rising to the level of probable cause that an individual has committed a crime. If the police seize evidence without meeting one of these conditions, the judge may deem it an illegal search and will exclude that evidence at trial. The law refers to this as the exclusionary rule.

Fruit of the Poisonous Tree

If the police obtain evidence through an illegal search, the judge must exclude evidence gathered after the fact. The Supreme Court has held that any evidence that results as a by-product of an illegal police search constitutes "fruit of the poisonous tree." In other words, law enforcement would not have the evidence had it not been for the unlawful search.

Imagine that the police stop somebody suspected of selling drugs on a local street corner. While conducting a stop and frisk of the suspect, the police searched their inside pockets and found several bags of heroin. They also find and collect the suspect's cell phone. They arrest the suspect for drug possession. Back at the police station, they find texts on the cell phone confirming their suspicion that the suspect is a drug dealer.

If the court finds that the initial stop and frisk was unlawful, then the texts on the cell phone would not be admissible at trial.

Probable Cause

Police must have probable cause to conduct a warrantless search. This is the same standard required for a judge to issue a warrant. Law enforcement must submit an affidavit spelling out why the judge should issue the warrant. If the judge believes probable cause exists, they can sign the warrant and authorize the search.

Law enforcement has probable cause for arrest when the facts and circumstances within the police officer's knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. Probable cause must come from specific facts and circumstances, not a police officer's hunch, feeling, or suspicion.

Probable cause exists when the officer knows specific facts and circumstances that provide a reasonable basis to believe that the suspect committed a crime at the place to be searched or that evidence of a crime exists at that location.

Probable cause to seize property exists when facts and circumstances known to the officer would lead a reasonable person to believe that the item is contraband, stolen, or constitutes evidence of a crime.

Search and Seizure

There are a number of circumstances in which an officer can conduct a search, make an arrest, or seize items without implicating the Fourth Amendment. These are exceptions to the rule and are sufficient to justify a warrantless search.

The police can conduct searches where necessary to ensure their safety and the safety of the public. They are also able to seize evidence in plain view of the police. For example, the police do not need a warrant or probable cause to seize a bag of drugs lying on the floor.

Police can also conduct a warrantless search in emergency situations. This is referred to as the exigent circumstances exception. An example would be while in pursuit of an armed fugitive. Police can also search an individual and the surrounding area when making an arrest.

Another situation where a police officer can conduct a warrantless search is when the suspect consents to the search. In fact, anyone in charge of a space, such as a roommate or spouse, can consent to the search. As long as the police believe that the person giving the consent has the apparent authority to do so, they do not need a warrant. 

In a typical roommate scenario, a roommate can consent to a search of their own room and common areas of the residence only. In a situation where there is a romantic relationship and the parties share a room, only consent of one of the room's occupants is necessary.

Police Searches During a Traffic Stop

There are special rules when it comes to whether the police need a search warrant during a traffic stop. The regular rules and exceptions apply, such as the plain view exception to the warrant requirement. If the police pull a driver over for suspicion of DUI and see an open container in plain view, they can seize it without a search warrant.

Certain limitations apply to a routine traffic stop. For example, the police officer must reasonably believe the suspect committed a crime. They must also believe that evidence of the crime is either in the car or the passengers' belongings.

Some of the special rules that apply to a traffic stop include:

  • Law enforcement can search the suspect's trunk, glove compartment, or center console if they believe there is evidence hidden in one of these locations.
  • The police can search the passengers' pocketbooks, backpacks, and other personal belongings if they believe there is evidence hidden.

Defendants in criminal cases have raised many Fourth Amendment issues over the years. Whenever there is a search incident to an arrest, the defendant has the right to challenge the search and seizure.

A Criminal Defense Lawyer May Be Able To Help

It's not always clear whether a law enforcement officer has violated your constitutional rights. The United States Constitution protects you from unlawful searches and seizures. Even if you engaged in criminal activity, you still have certain inalienable rights.

If you honestly believe the police have violated your reasonable expectation of privacy, you should contact a criminal law attorney. They can review your case and determine if a good faith exception to the warrant requirement existed. If not, your attorney can demand that the State dismiss the criminal charges.

The police have a right to conduct their criminal investigation. At the same time, they must respect the protections afforded people in the Constitution.

Reach Out to a Criminal Defense Attorney

In short, there are many circumstances in which the police may search and seize you or your possessions even without a warrant or probable cause. If you believe the police engaged in an unlawful search and seizure, you should contact a criminal defense lawyer right away.

Try to recall the details of the events leading up to the search and review them with an attorney to determine whether your rights have been violated. Whether the State has charged you with a misdemeanor or a felony, you may face severe penalties. An attorney will review your criminal case and determine if your constitutional rights have been violated.

Speak with a criminal defense attorney near you today.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.