FOURTH AMENDMENT SEARCHES AND SEIZURES
“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.” U.S. Constitution
In Katz v. United States, The Supreme Court held that a search is an intrusion into an area covered by a reasonable expectation of privacy. A search occurs when the government, or an agent of the government, intrudes upon a citizen’s person, place or things.
The goal of the Fourth Amendment is to protect people’s right to privacy and freedom from unreasonable intrusions by the government.
Generally, you have the right to refuse a warrantless search of yourself, your car, your things, or your home. If you do not want to be searched, tell law enforcement that you do not consent to any search and if you are free to leave. If law enforcement says you are free to leave, walk or drive away calmly. If law enforcement says you are not free to leave while they investigate the matter, wait silently and patiently until they announce the conclusion of their investigation.
A seizure is a government taking by law enforcement officers. A person is seized when a law enforcements officer’s words and actions make a reasonable person feel like they are not free to leave.
Papers, things, and places are seized when law enforcement officers take them.
To trigger a stop, law enforcement must have reasonable suspicion, or a clear unbiased reason, that you committed, have committed, or are about to commit a crime.
There must be a show of authority by law enforcement. Examples or authority include forceful language, showing handcuffs, physical contact. The person seized must also submit to that authority, reasonably believing they are not free to leave.
A warrant is a an order form a neutral judge or magistrate, who after determining probable cause, permits law enforcement to take a specific action.
There are two typical warrants you may encounter when dealing with law enforcement. The first is a search and seizure warrant, which allows law enforcement to search a place for specific evidence, and seize evidence. The second is an arrest warrant, which allows law enforcement to arrest or detain a specific person.
To obtain a warrant, law enforcement must show there is probable cause to believe a search or arrest is justified. They must support this finding with sworn statements. The sworn statements must describe in detail the time frame to execute the warrant, the place they will search, the items they will seize, and the person they will arrest.
A neutral and detached judge will then review the warrant application and decide if probable cause exists before the warrant is valid.
Generally, law enforcement officers need to have a warrant to execute a lawful search and seizure or arrest.
There are several exceptions where law enforcement officers do not need a warrant to execute a lawful search an seizure or arrest. These exceptions include:
- Search incident to lawful arrest
- Plain view exception
- Stop and Frisk
- Automobile exception
- Emergencies/ Hot pursuit.
If you feel law enforcement has violated your rights in anyway, do not argue with them. Instead, stay quiet and remember every detail so you may report it to your lawyer. Violations of constitutional rights are always best argued in Court and not on the street.
If you feel your rights have been violated in an unconstitutional search, you are welcome to contact my office. First 30 minute consultation is free!