Unreasonable searches and seizure. It all starts with the 4th Amendment…

On December 15, 1791 the United States adopted 10 Amendments to the US Constitution, including the 4th Amendment. It reads as follows:

To this day that one sentence from over 200 years ago comes alive every single time there is an encounter between a police officer and a citizen anywhere in this country. And it continues to give rise to countless legal debates and courtroom battles between criminal defense lawyers and prosecutors every day in courtrooms all across the country.

And, of course, it continues to do exactly what is was meant to do: Protects us from unlawful police activity.

The bottom line is that Police need a warrant to search you, your car, your home and any other property belonging to you, basically anywhere you have a reasonable expectation of privacy. And if they conduct a search and they don’t have a warrant, then whatever they seize or take from you will not be allowed to be used as evidence against you. And the result? The case against you will be dismissed!

So the cops didn’t have a warrant when they searched you or your stuff and therefore you think that your case is a slam dunk winner?

Unfortunately, it’s not necessarily so.

Why not? Because since the enactment of the 4^th Amendment the courts, in interpreting it over the years, have created exceptions to the 4th Amendment law requiring a warrant. If the evidence in your case shows that one of these exceptions apply, then the evidence seized from you will be allowed to be used against you. The following is a list of the exceptions to the Warrant requirement:

1. Search before being arrested

A search incident to lawful arrest does not require a warrant. In other words, if someone is lawfully being arrested, the police may search him/her and any area surrounding the person that is within reach (within his or her “wingspan”). See Chimel v. California, 395 U.S. 752 (1969). The rationale is that the search is permissible as a protective measure.

EXAMPLE: John is arrested when police discovered he has an outstanding warrant for his arrest. A police officer can pat him down before he is arrested and can seize anything illegal that they find in his possession.

2. Plain View Exception

No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be viewed. For example, an officer cannot illegally enter a suspect’s back yard and then use the plain view exception to seize an illegally kept alligator living in the pool. But, if on the premises to serve a warrant issued to search for marijuana plants, the alligator, if in plain view, can be seized.

EXAMPLE: The police are called to Donald’s house by neighbors who see him beating up his wife, Victoria. After properly entering the house (without a search warrant – see emergency exception below), police notice Donald’s prized gun collection hanging on the wall. Fortunately for the officers, the guns are not loaded. Unfortunately for Donald, many of them are illegal and Donald is arrested for battery as well as for the illegal guns, which are seized.

3. Consent

If consent is given by a person reasonably believed by an officer to have authority to give such consent, no warrant is required for a search or seizure. So, if a suspect’s “significant other” provides police with a key to the suspect’s apartment, and police reasonably believe that she lives there, the search will not violate suspect’s Fourth Amendment rights even if she did not live there and even if she, in fact, lacked authority to consent, . See Illinois v. Rodriguez, 497 U.S. 177 (1990).

EXAMPLE: Officer Warren knocks on a murder suspect’s door. The door is answered by the suspect’s 6 year old child, Timmy. The officer asks Timmy “Is it okay if I come in and talk to your Dad? He’s expecting me.” And then walks into the apartment. He then sees the suspect, Roland, sitting on the sofa oiling his illegal Tommy-gun, the suspected murder weapon. He arrests Roland for possession of the gun and seizes the evidence. Because Timmy, being a small child, was not legally able or authorized to give consent, the entry was illegal and the evidence will be excluded.

4. Stop & Frisk

Police may stop a suspect so long as there is a reasonable suspicion of a criminal act. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect. See Terry v. Ohio, 392 U.S. 1 (1968).

EXAMPLE: Officer P. Harker’s peers often joke that he has something akin to a “spidey-sense” which tells him when folks are up to no good. While enjoying a cup of coffee at his favorite donut shop, Officer Harker’s neck hairs stand up straight. He immediately goes outside where he sees Ivan walking down the street, carrying a small duffel bag. He orders Ivan to stop and drop the bag. When the bag falls, Officer Harker hears the clanging of metal against metal. He then frisks Ivan and discovers a hidden pistol in Ivan’s pocket. He then searches the duffel bag and discovers ammunition and several illegal hunting knives. Despite the fact that Officer Harker’s “spidey-sense” proved accurate once again, the evidence will be excluded as he cannot state any reason why he stopped Ivan, other than his unusually active neck hairs.

5. Automobile Exception

Because vehicles are obviously highly mobile, a warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instruments of a crime, contraband, or the fruits of a crime. Although commonly referred to as the “automobile exception,” this rule applies to any vehicle, including boats. While in some ways, it is quite a broad exception, this rule limits the ability to search those areas which might contain evidence of the type suspected to be present. In other words, if police suspect that the occupant of a boat is smuggling people across the border, searching a small tackle box on board would not be permissible. However, if they were looking for drugs, they could search the tackle box. The rationale is that, if an officer has to take the time to obtain a warrant, the vehicle might be out of reach before the warrant can be issued and executed. See Carroll v. United States, 267 US. 132 (1925).

EXAMPLE: Officer has reason to believe that an abandoned car on the corner contains illegal drugs in the trunk. The car is missing all four wheels and is up on cinder blocks, and the engine was stolen long ago. Assuming that the automobile exception applies, Officer uses a crowbar to force open the still-working lock on the trunk. There, he finds 10 kilos of cocaine. Rushing back to the station house to show off the evidence to his Captain, Officer runs into a Judge. The Judge says “You should have called me first. While it’s great to get the drugs off the street, unfortunately we can’t use this as evidence against anyone. The search was illegal, as the automobile exception to the warrant requirement only applies when the vehicle is actually capable of being moved. That’s the whole point of the exception!”

6. Emergencies/Hot Pursuit

The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner.

EXAMPLE: While running from police, Fred enters Joe’s garage and the police follow Fred in. (They are not required to give up pursuit until such time as they can obtain a search warrant for the premises.) While in Joe’s garage, police notice illegal drugs in plain view. They can arrest Fred for his crimes, and they can also seize the drugs and arrest Joe for possession of the drugs, even though Joe had nothing to do with Fred and the police were in Joe’s garage only because of the hot pursuit of Fred!

(NOTE: Please note that the examples above are just that, examples, and will not necessarily help aid in your defense.)

So as you can see the general rule is that police need a warrant to search you and your belongings. But like anything else in life, there are exceptions to the general rule. Call me to discuss how and if the law requiring a Warrant can help me help you.