Legal Police Search and Seizure

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WAS THAT POLICE

SEARCH AND SEIZURE ACTION LEGAL?

The Fourth Amendment to the U.S. Constitution guarantees all persons the right to be free from “unreasonable” searches and seizures by the government. This begs the question: What is “unreasonable”?

In this booklet we explain:

• The general rules governing searches and seizures, including when a warrant is required and on what grounds a warrant will be issued.
• Common exceptions to the warrant requirement, including:
• Consent;
• Contraband in “plain view”;
• Search incident to arrest; and
• Search incident to a motor vehicle stop.
• The consequences for your case if the evidence against you was obtained in violation of your constitutional rights.

TABLE OF CONTENTS

I. INTRODUCTION
II. THE GROUND RULES
A. The Police Must Obtain a Warrant to Invade Your Privacy
B. The Warrant Must be Based on “Probable Cause”
C. Evidence Unlawfully Obtained Cannot Be Used Against You

III. EXCEPTIONS TO THE GROUND RULES – WHEN IS A WARRANT NOT REQUIRED?
A. When You Consent to the Search
B. When Evidence of Criminal Activity is in Plain View
C. When You are Detained, Arrested, Searched Incident to Arrest
1. Investigative Stop Based on a Reasonable Suspicion
2. Arrest Based on Probable Cause
3. Search Incident to Arrest
D. When Your Home or Place of Business is Searched
1. Grounds for Warrantless Entry Into Your Home or Business
2. Scope of a Warrantless Search
E. When You are in a Car
1. Traffic Stop
2. Arrest
F. Other Items and Places Commonly Subject to Search and/or Seizure
1. Computers
2. Luggage
3. Mail and Packages
4. Roadblocks
5. Border Searches
IV. CONCLUSION

I. INTRODUCTION

f you ever have watched a television crime drama or taken a high school civics class, then you probably know that the Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures by the government. You probably don’t know, however, the extent of this prohibition or how the Fourth Amendment applies in everyday, real-life situations. Do you know, for example, when the police are allowed to enter your home; or whether an officer can pat you down during a traffic stop; or when you can walk away from a police encounter?

The Fourth Amendment 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These 54 words are meant to protect you from overreaching by the government and level the playing field between you and the larger criminal justice system. In a perfect world, they allow you to feel secure, while allowing law enforcement enough leeway to do its job.

In the real world, though, any encounter with law enforcement may leave you wondering, “Can they do that?” Here, we’ll try to answer that question by explaining the general nature of your Fourth Amendment rights and providing examples of common situations in which these rights apply.

II. THE GROUND RULES

A. The Police Must Obtain a Warrant to Invade Your Privacy
The general rule is that law enforcement must have a warrant – written permission from a judge – to search or seize any place or thing in which you have “reasonable expectation of privacy.” Whether you have a reasonable expectation of privacy in a particular place or thing will depend in large part on the specific circumstances involved, but a judge will consider both your subjective belief that a place or thing was private and whether, objectively, society would consider it to be private. Thus, for example, you have a reasonable expectation of privacy in your home and the area immediately around your home, but not in the garbage you put out on the curb for pickup.

B. The Warrant Must be Based on “Probable Cause”
A warrant can only be issued upon a showing of “probable cause.” That is, law enforcement must demonstrate to a judge that there is probable cause to believe that evidence of a crime will be found in the place to be searched and/ or that a crime was committed by the person to be arrested (seized). Probable cause is more than a suspicion, but less than the reasonable doubt required to obtain a criminal conviction. Broad, sweeping allegations generally will not suffice; rather, the warrant must be based on specific, articulable facts. When issued, it must particularly describe the place to be searched and the items or persons to be seized. Thus, the warrant requirement demands that a judge give his or her “okay” to a limited invasion of privacy.

C. Evidence Unlawfully Obtained Cannot Be Used Against You
The right to be free from unlawful searches and seizures is not a trivial one; it is fundamental to our democracy. Accordingly, there are significant consequences if the police violate your rights.

Evidence obtained in violation of the Fourth Amendment cannot be used against you; it must be “suppressed” or thrown out because it is tainted by the officers’ unlawful conduct. Moreover, any evidence that is obtained or derived from the unlawfully obtained evidence also must be suppressed. The law calls this evidence the “fruit of the poisonous tree.” For example, if the police obtain a gun as a result of an unlawful search, the gun may not be used as evidence in a criminal case against you, nor may the fingerprints or any other evidence found on the gun. For legal purposes, it is as if the gun never existed. Thus, depending on the facts and evidence in your case, suppression of the tainted evidence may result in the entire case against you being dismissed.

III. EXCEPTIONS TO THE GROUND RULES – WHEN IS A WARRANT NOT REQUIRED?

There are many exceptions to the warrant requirement – situations in which the police may conduct a search, or seize evidence, or stop or arrest an individual without a warrant.

A. When You Consent to the Search
If you consent to the search of your bag, your car, your home, or any other place or item, your consent gives the police free reign to search, without the need for probable cause or any other justification. Your consent amounts to a waiver of your rights; that is, by agreeing to the search, you agree to give up your constitutional right to object to the legality of the search.

In order to be valid, consent must be freely and voluntarily given; however, the police are under no obligation to inform you that you can refuse their request, and you may unintentionally (but still freely and voluntarily) waive your rights.

You do not voluntarily consent to a search when you accede to the officer’s apparent authority. Thus, for example, if the officer says, “I’m going to look in the trunk,” and you say, “Okay,” you have not voluntarily consented to a search. The officer must, in fact, seek and obtain your permission to search.

Your consent to a search essentially nullifies your rights. Accordingly, if an officer asks for your consent to search your purse or the trunk of your car or the box in the back seat, this means the officer does not have a warrant and likely cannot rely on any other exception to the warrant requirement to justify the search. You have the right to say “No.” Exercise that right. Do not consent to any search.

B. When Evidence of Criminal Activity is in Plain View
The “plain view” exception to the search warrant requirement allows law enforcement to seize any object in plain sight that appears to be contraband or evidence of a crime if:

1. The officers are lawfully present at the place where the object is viewed and have lawful access to the object;
2. The incriminating nature of the object is immediately apparent.

Thus, for example, if the police enter a home on a valid search warrant for weapons, they also may seize the drug paraphernalia sitting in plain view on the kitchen table.

C. When You are Detained, Arrested, Searched Incident to Arrest
The police need no justification to approach you on the street and ask you questions. As long as there is no official compulsion for you to stop or respond, there is no issue. The Fourth Amendment only comes into play when a person is “seized” by law enforcement.

You do not have to be arrested in order to be “seized.” If the officers’ conduct suggests you are not free to walk away, that is a Fourth Amendment seizure. This conduct might include the use of lights and sirens; the officers’ words or tone of voice; an officer placing his hands on you or displaying a weapon or positioning himself to block your exit. The threatening presence of several officers, in and of itself, may be enough to create a “seizure” situation. Bottom line: If, in light of all the circumstances, a reasonable person would believe he was not free to leave, then a seizure has occurred and Fourth Amendment rights attach.

1. Investigative Stop Based on a Reasonable Suspicion
The police may make an investigative stop, without a warrant, when they have a reasonable suspicion that criminal activity is afoot. A reasonable suspicion is something more than a hunch, but not much more than that is required. However, the officer must be able to articulate specific facts that led him to stop you.

As part of an investigative stop, the officer may ask for your identification; this is not considered to be an unreasonable intrusion into your privacy for purposes of the Fourth Amendment. In addition, the officer may conduct a limited frisk for weapons, to protect his safety, but only if he has a reasonable suspicion that you are armed and potentially dangerous to him.

An investigative stop is constitutional only if it is “reasonable.” That is, it must be “no longer than necessary” to accomplish the goal of the stop, and the officer must use “the least intrusive means reasonably available” to achieve that goal.

2. Arrest Based on Probable Cause
An arrest is a seizure of a person that is allowed under the Constitution only if it is based on “probable cause.” Probable cause is a higher standard than the “reasonable suspicion” an officer needs for an investigative stop. An officer has probable cause to arrest if, in light of all the facts and circumstances, a reasonable person would believe that a crime was or is being committed and that the person arrested committed it.

Here are some examples of circumstances that might give an officer probable cause to arrest without a warrant:

• An officer who is familiar with drug dealing or is on surveillance or is patrolling a known high crime/high drug use area observes a hand-to-hand transaction that includes the exchange of money for a small item.
• An officer observes erratic driving and pulls the vehicle over. The driver has red, bloodshot eyes; is slurring his speech; smells of alcohol; fails one or more field sobriety tests; and/or admits to having been drinking. Any combination of these facts will create probable cause to arrest.
• An officer detects the unmistakable odor of a particular controlled substance, and that odor can be linked to a
particular individual.

The line between a “stop” and an “arrest” is sometimes blurry. In evaluating the situation, a judge will consider all the circumstances, including the reason you were stopped, how long you were detained, and your freedom of movement while you were detained (e.g., were you handcuffed).

3. Search Incident to Arrest
If you are arrested, the police may conduct a limited search “incident to arrest.” This means that the officers may search you and the area within your “immediate control.” This is known as the “grab area,” and it extends to any space or container from which you might gain access to a weapon or to destroy evidence (e.g., the interior of the car; your purse on the front seat; the hotel room where you are arrested; the brown paper bag on the coffee table). The “grab area” is significantly reduced if you are handcuffed, and even more so if you are handcuffed and placed inside a locked squad car. The “grab area” rule does not preclude all searches of containers once you are handcuffed. If a bag or other container that may contain a weapon or other evidence is accessible to bystanders or your compatriots, it may be subject to search upon your arrest.

D. When Your Home or Place of Business is Searched
Law enforcement may not enter or search your home or place of business without a warrant, unless one of these exceptions to the warrant requirement applies.

1. Grounds for Warrantless Entry Into Your Home or Business
In order to gain entry into your home, law enforcement may rely on:

Emergency
Law enforcement may enter a home or business without a warrant in order to save a life, when they believe a person is in need of immediate assistance and there is no time to obtain a warrant. This is known as the “exigent circumstances” or “emergency” doctrine. A fire is an exigent circumstance that would allow police to enter without a warrant. If a home or business is the scene of a murder, the police may enter without a warrant to search for the suspect and/or other victims. In addition, police may enter a home or business to prevent an injury, if it appears to the officers that a physical confrontation is imminent (e.g., on a DUI call).

Hot Pursuit
The police may enter a home or place of business in hot pursuit of a felony suspect seeking to avoid arrest. To put it another way, a person trying to evade the police cannot run into a private dwelling and call “Safe!” The police can follow him inside, hot on his heels, without a warrant.

Consent
When you give the police permission to enter and/or search your home or place of business, your consent amounts to a waiver – a voluntary abdication – of your Fourth Amendment rights, and the police are free to search without the need for a warrant. Moreover, anyone with control over the premises has the authority to consent to a search of the premises. Thus, for example, if you are away, your roommate has the authority to let the police in and to consent to a search of your apartment. That authority may not extend to all areas of the property, however. In general, your roommate’s consent would extend to common areas (the kitchen, living area) and to his or her room. If you have taken steps to protect the privacy of your personal space (e.g., locked your bedroom door, placed your belongings in a locked footlocker or chest), then your roommate may not have the authority to consent to a search of that space.

2. Scope of a Warrantless Search
Once inside your home or business, law enforcement may conduct a limited search without a warrant, on the following grounds. A more extensive search of your home or business generally will require a warrant.

Protective Sweep
When police enter a home or business, they are allowed to make a “protective sweep” of the entire premises to ensure their safety and protect themselves from dangerous persons who might be on the premises. A protective sweep is not meant to be as intrusive as full-blown search; it should be no more than a quick and cursory inspection.

Search Incident to Arrest
When police officers enter a home or business to make an arrest, the officers may search the area of the home that is immediately accessible to the person being arrested. This exception does not justify a full-blown search of the entire home or business.

Plain View
When police are lawfully in your home or business (pursuant to a valid search warrant, or consent, or an emergency, or any other exception to the warrant requirement), the officers may seize any contraband or obvious evidence of a crime that is in “plain view.”

E. When You are in a Car

1. Traffic Stop
The police may stop a car based on a mere reasonable suspicion that a traffic offense has been committed. This is an easy standard to meet; rarely is a traffic stop found to be unconstitutional. Whether the officer’s conduct after the stop is constitutional will depend on the specific circumstances. If you are pulled over, the police may:

• Ask to see your driver’s license and registration, and ask other questions related to your identity.
• Shine a flashlight inside the car and seize any contraband in plain view.
• Move papers to look at the vehicle identification number; and
• Order you and any passengers out of the vehicle.

The officer’s conduct must be reasonable, in light of the reason for the stop. He cannot ask any questions or take any actions that are unrelated to the stop or that unnecessarily prolong the stop. So, for example, a dog sniff of a car during a lawful traffic stop is permissible, as long as it occurs during the time deemed reasonably necessary to conduct the traffic stop. A prolonged detention to conduct the dog sniff is not permissible.
If the officer gives you a ticket (issues a citation for a traffic offense), the officer may not search your car or pat you down, unless the officer has a particular and reasonable suspicion that you may pose a danger. If the officer orders you out of the vehicle, this alone does not allow the officer to frisk you. The same holds true for any passengers in the car. If, however, someone makes a furtive movement, or refuses to obey the officer’s orders, or otherwise acts suspiciously, then the officer may be justified in patting down all the vehicle’s occupants.

If the officer has probable cause to believe that your car contains evidence of a crime, he can search the vehicle, and any containers in the vehicle that may hold that evidence, without a warrant. This includes luggage, purses, backpacks, wallets, or any other container in the car.

2. Arrest
If the traffic stop evolves into the arrest of you and/or one of your passengers, then the officer may search your
vehicle “incident to arrest”:

1. To protect his safety, but only when the person being arrested is unsecured and within reaching distance of the passenger compartment at the time of the search; or
2. When the officer believes that evidence related to the crime might be found in the vehicle.

Since the police usually will handcuff and secure the person being arrested, the “safety” argument seldom applies. The evidence preservation argument might justify a search of the vehicle, depending on the crime for which you or your passenger is being arrested. If, for example, your passenger is being arrested for possession of drugs or weapons, the police generally will be justified in searching the car and everything in it.

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