Although United States citizens have some degree of freedom from government intrusion, there are limits to that privacy. Criminal procedure law recognizes the rights of the people, but it also acknowledges the need to deter illegal activity.
Police officers can, where justified, search a person's home, car, or other property and seize evidence of a crime. What rules must the police follow when searching your person or property? What are your Fourth Amendment rights? What can you do if you believe the police violated your constitutional rights?
Both state and federal law precludes the use of evidence obtained during an unlawful search. In most cases, the police will need a search warrant to seek evidence on your person or property. A search warrant is a court order that gives law enforcement the right to search for contraband and criminal evidence.
This article will discuss what the police can and cannot do during a criminal investigation. It will also describe some limitations the Fourth Amendment to the U.S. Constitution places on law enforcement officers and criminal proceedings.
What the Police Can Do: Reasonable Searches
Under the Fourth Amendment to the Constitution, police are only allowed to engage in "reasonable" searches.
A search is considered reasonable only if:
- Police have obtained a warrant to execute the search
- The search falls into one of the categories of good-faith exceptions where the courts allow a warrantless search
For the police to obtain a warrant, they must show that they have a reasonable belief that they will find evidence of a crime in a particular place or in the possession of a specific person. This is called probable cause.
Under the U.S. Constitution, police must first convince a judge of probable cause before the judge can issue a warrant. They do this by filing an affidavit with a local judge or magistrate. This affidavit must outline the specific facts and knowledge the police use to justify the request. A judge can approve or deny the issuance of a warrant in a criminal case.
What if the Police Have a Warrant?
Police can enter the location listed on the search warrant. They can only search for the items mentioned in the warrant. Law enforcement officers may sometimes expand the search beyond these specifications, such as when they spot apparent evidence of a crime in plain view.
Imagine a police officer has a warrant to search an apartment for stolen jewelry. While in the apartment, they notice baggies of cocaine on the kitchen table. They may seize the drugs because they were in plain view.
When entering a home or business, police can ensure their safety by quickly making a protective sweep. In such a sweep, they can check for dangerous persons on the premises. They can also see if weapons are in plain view or within reach.
Another example of when police can expand their search is when they arrest a suspect in his living room on charges of armed robbery. They may open his coat closet door to ensure that no one else is hiding there. It is reasonable to think someone might be in the closet, but they may not search the medicine cabinet because an accomplice could not hide in such a place.
Warrants Are Often Valid for a Short Time
Unlike arrest warrants, search warrants are usually limited in time, often expiring in a few days. Some warrants specify the time of day when the police can perform their search. Those times are usually business hours.
Other warrants specifically allow police to execute a search at irregular times. This gives law enforcement officers the chance to discover contraband in a way that is surprising to suspects. After the search, the officer who obtained the warrant must show the judge that they have executed the warrant. The officer may also submit an affidavit to the judge if they cannot appear before that judge.
In many situations, the police do not need a warrant to search a person or their property. These exceptions have evolved under criminal law, primarily due to holdings in Supreme Court criminal cases.
Some exceptions to the warrant requirement include:
We will discuss each of these exceptions in more detail below. Remember, there are still times when law enforcement officers engage in unreasonable searches. If this happens to you, your defense attorney can challenge the use of any evidence uncovered during the illegal search.
Consent to Search
Police may perform a warrantless search if they have the subject's consent, but their search cannot extend beyond the provided consent. This consent must be voluntary. Officers cannot coerce or trick anyone into giving consent for a search. Below are some examples of when the police can conduct a warrantless search.
Imagine that a police officer knocks on a suspect's door and asks for permission to search the homeowner's garage for evidence of a methamphetamine lab. The homeowner agrees. The police can lawfully search in the garage but not in other areas of the house. If the police have another legal, legitimate basis to explore other areas of the house, they can do so. If not, their search is limited to the area of the home that the resident has consented to.
No Reasonable Expectation of Privacy
Police can also search any area that lacks a reasonable expectation of privacy without a warrant. For example, a suspect would have a legitimate expectation of privacy concerning their purse, backpack, or fanny pack. However, they would not have a reasonable expectation of privacy regarding items lying in their front yard and easily viewed by a passerby.
Police can dig through someone's curb-side garbage to find a murder weapon. Nobody has a reasonable expectation of privacy in trash left on a curb for pickup by waste management workers. Therefore, no warrant is necessary.
Law enforcement officers can conduct a warrantless search in urgent or emergency situations. This is particularly true where public safety may be at risk. The same applies if the officer fears the suspect will destroy evidence or run away. The court deems such situations as involving exigent circumstances.
Imagine that the police receive a 911 call about gunshots fired in an upstairs apartment. Law enforcement can immediately enter the identified dwelling without waiting for a judge to issue a warrant.
Another example of exigent circumstances is when an officer rings the doorbell but can see, through the window, that someone is frantically dumping what appears to be powdered drugs down a sink. There would be no need for the police to wait for a judge to issue a warrant before entering the residence in this situation.
Police do not need a warrant if they are in "hot pursuit" of a person suspected of committing serious criminal offenses who flees into a private home in an attempt to escape. This is another form of exigent circumstances.
For example, imagine the police chase a suspect from a robbery scene. The suspect runs into someone's house and slams the door shut. The police can immediately follow the suspect into the home and search the area.
In 2021, the U.S. Supreme Court held that there are limitations on law enforcement's authority to execute warrantless searches while in hot pursuit. In Lange v. California, the Supreme Court ruled that the hot pursuit exception excludes people suspected of traffic infractions or misdemeanor offenses.
Plain View Exception
If the police find evidence in plain view, they may seize it without a search warrant. For example, if an officer performs a routine traffic stop and sees drugs or an open container on the front seat, they can seize it. This evidence can then be used against you during your criminal trial without it being a violation of the Fourth Amendment.
Searches Incident to Arrest
If the police make a lawful arrest, they do not need a search warrant. They can search the suspect and the immediate surroundings for evidence of the crime.
Stop and Frisk Situations
The police have a right to stop a person they suspect of criminal activity. When they detain a person for criminal investigation, they can do a pat down to ensure the suspect has no weapons on them.
Law enforcement officers may not stop and frisk suspects unless they have reasonable suspicion that a person was involved in criminal activity and may be armed and dangerous.
What The Police Cannot Do
All police searches require warrants unless one of the exceptions to the warrant requirement is in play. Such exceptions include the examples provided above.
If the police obtain evidence during an illegal search or seizure, the judge may ban prosecutors from using it at trial. The exclusionary rule dictates that a judge must exclude any evidence the police obtained during an unlawful search.
The court will also prohibit the State from using evidence found as a by-product of an illegal search. This is known as the “fruit of the poisonous tree" doctrine. However, it is worth pointing out that the State may use excluded evidence during grand jury proceedings.
What About Vehicle Searches and Inventory Searches?
A question that often arises is whether the police can search your vehicle without a warrant. The same limitations that apply to general police searches apply to vehicle searches. The police can seize items in plain view. They can also search if exigent circumstances arise.
Generally, the police can also search your trunk, glove compartment, and other closed containers inside your vehicle. They can proceed with this kind of search only as long as they have probable cause to believe they can find an instrument of a crime.
If the police arrest you and impound your car, they are not required to get a court order to search your vehicle if the search is conducted pursuant to a routine inventory search. In order for an inventory search to be valid, two requirements must be met:
- The vehicle must have been properly impounded
- The inventory search must have been conducted pursuant to a standardized department inventory search policy
However, if the police illegally search your car while it is in the impound lot, your defense attorney can challenge the search.
Learn More About Police Search and Seizure Authority
When a police search is illegal, the judge may toss out the evidence. If you are facing forfeiture, criminal prosecution, or trial in state or district court, speak with an experienced criminal defense attorney who can protect your constitutional rights.
You can contact a seasoned criminal defense lawyer near you today to ensure that your rights have not been violated during a questionable search and seizure. The right of the people to be protected by the Fourth Amendment cannot be compromised.