“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.”

The Fourth Amendment provides constitutional protection for every citizen’s right from the government’s unreasonable searches into their person, home, business and property.  When a police officer violates an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence found from that search or seizure will be suppressed and not admissible to the criminal case against the person whose rights were violated.

A court must determine if the person whose home or property that was being searched had a reasonable expectation of privacy.  For an investigation to be considered a search, a court must conclude that the investigation impinged or intruded upon a person’s “legitimate expectation of privacy.”

There are a number of other exceptions to the 4th Amendment warrant rule:

• The Plain View Doctrine – An officer may seize anything in plain view, that is, as long as he has probable cause to believe it has been involved in a crime.
• The Open Fields Doctrine – Warrants are not needed to search open fields or outdoor areas, even on private property. The Court has ruled that it is not reasonable to expect privacy in an open field. This does not include the area immediately around a private dwelling, which is known as curtilage.
• Exigent circumstances – This means that if the officer believes there is immediate danger to his life or others, or to someone’s private property, and he believes there is some emergency where there is no intent to arrest or seize evidence, the warrant requirement is waived. An example would be that he believes a suspect is hiding a gun under the couch on which he is sitting and believes he might try to use it. In this case, the officer could search for and seize the gun without a warrant.  If the police’s search is in an emergency situation, then they may not need a search warrant. For example, if the police are pursuing an armed suspect that has disappeared into a small neighborhood, they may not need a search warrant to search any of the homes there because the suspect is putting the residents at risk.
• Motor Vehicle Exception – The Supreme Court has ruled that vehicles do not have the same protection as private dwellings. Vehicles may not be stopped randomly. There must be reasonable suspicion that a crime has been committed to stop a vehicle. Items that are in plain view can be confiscated and other areas of the vehicle can be searched if there is reasonable suspicion. Reasonable suspicion means the officer has some particular articulable reason that he thinks a crime may have been committed. Officers may not search the occupants of the vehicle unless there is reasonable suspicion of a crime having been committed.
• Searches incident to a lawful arrest – If a lawful arrest is made, an officer can search the person and the area immediately around the person without obtaining a search warrant.
• Border search exception – Searches conducted at US borders or international airports can be conducted randomly without reasonable suspicion of a crime having been committed.
• Consent. If the police show up at your door and ask you if they can come inside to search for drugs and you consent to the search, then the police do not need a warrant.
• Other exceptions – Student property on public school grounds can be searched without a warrant if there is reasonable expectation of finding evidence of a crime. Government employees may have their personal items at work searched without a warrant for evidence of illegal activity. Prisoners can have their personal items searched without a warrant. If a person consents willingly to a search or seizure, a warrant is not necessary. Finally, most case law has established that employees do not have reasonable rights to privacy regarding their work related electronic information, such as emails and documents on their computers at work.

Any evidence that is obtained in an illegal search and seizure is not admissible in court by the prosecution in a criminal defendant’s trial. This is known as the 4th Amendment Exclusionary Rule because evidence obtained in this manner is excluded from the trial. The Supreme Court established this rule in a case called Weeks vs. United States, 1914. Before that time, any evidence, even if it was gathered in an illegal search and seizure, was admissible in court.

There are some exceptions to the 4th Amendment Exclusionary Rule. For example, Grand Juries may use illegally obtained evidence to question witnesses. The method of gathering the evidence can be challenged later if the defendant is charged. Evidence gathered in good faith by an officer can be used in court. This means that if an officer is following the directions of a warrant that is faulty, not realizing that it is faulty, the evidence may be used.

Evidence obtained through illegal search and seizure can also be used in the following circumstances:

• When evidence is obtained illegally outside the United States
• Probation or parole revocation hearings
• When a private person, not a government agent, illegally seized the evidence
• When evidence seized illegally is used to impeach the defendant’s testimony
• Tax hearings
• Deportation hearings

Common Questions to the laws regarding Search and Seizure:

My landlord/roommate gave the police permission to search my belongings – was this an illegal search and seizure?

Generally speaking, the person in charge of an area has the power to give permission to the police to search the area. So, if you share an apartment with a roommate, your roommate probably has the power to give permission to the police to search common areas in the apartment, like the living room or the kitchen, but not your personal bedroom.

Likewise, your landlord cannot give permission to the police to search any part of your apartment, except places like a communal common area, like a washer/dryer room in an apartment building. However, you should keep in mind that it is not an illegal search and seizure if the police search your apartment without any permission if they feel that the search is an emergency.

During a traffic stop, can the police search my car and frisk me?

In general, the police are allowed to search and frisk you if they have a reasonable suspicion that you are armed during a traffic stop. This is not an illegal search and seizure. In addition to frisking for weapons, the police can also pat you down for contraband material, like drugs. A recent Supreme Court ruling altered the laws that allow a police officer to search a car after a traffic stop. The Court ruled that a search of the passenger compartment of a car is only allowed if either:

• The driver/arrestee is within reaching distance of the passenger compartment at the time of the search (meaning that the police cannot search your can if you are arrested in the back of the squad car), or
• It is reasonable to believe the vehicle contains evidence of the offense of arrest (meaning the police cannot search your car for weapons unless they arrested you for a violent crime or illegal weapon possession).

My car was towed and impounded, can the police search it?

In short, yes. If the police have towed and impounded your car, they have the authority to search your vehicle. This search can be as comprehensive as the police wish and will most likely include opening any locked compartments or boxes found within your car. It does not matter what your car was towed and impounded for, it could be for something as simple as a parking violation or as serious as auto-theft. Regardless, the police can search your car if it has been impounded.  Police cannot tow and impound your car for the sole purpose of searching it, however. Police are required to follow strict procedures when it comes to these types of searches.

Civil Rights Violations

Excessive Force
Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, involving serious physical injury or death. Whether the officer’s use of force was reasonable depends on the surrounding facts and circumstances. The officer’s intentions or motivations are not controlling. If the amount of force was reasonable, it doesn’t matter that the officer’s intentions were bad. But the reverse is also true: if the officer had good intentions, but used unreasonable force, the excessive force claim will not be dismissed.

False Arrest
The claim that is most often asserted against police is false arrest. Persons bringing this claim assert that police violated their Fourth Amendment right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer’s presence.) Even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed

If you have any questions regarding a violation to your reasonable expectation of privacy, an illegal search and seizure, or a violation to your Civil Rights, Call Experienced Criminal Defense Lawyer Max Gorby at (323) 477-2819.