Search & Seizure Law

Search & Seizure Law

The Fourth Amendment to the US Constitution states “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 basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials/law enforcement officers.

This page will discuss lawful searches and seizures by topic.  Click here to learn more about lawful arrests.

General Rule

The general rule is that any law enforcement officer must have probable cause and a valid warrant before he conducts any search or seizure.

When Can Police Search Without a Warrant

There are several “exceptions” to the requirement that a police officer have a warrant before conducting a search.  Below is a list of a few of them:

  • Investigating a Person Based on Reasonable SuspicionThis is often called a “Terry Stop.”  A Terry Stop is when a law enforcement officer does not have probable cause to believe an individual committed a crime, but the officer knows of specific facts that make the officer suspicious that criminal activity is taking place.  In this case, the officer cannot perform a full search on a person, but he can pat him down to make sure he’s not carrying any weapons, and question him until the individual dispels the officer’s belief that he is involved in criminal activity.  An example where this may occur is when an individual flees from a crime scene—fleeing doesn’t necessarily create probably cause for a police officer to conduct a full search, but it can give sufficient reason for concern.
  • Search After a Valid ArrestIf an individual is arrested, an officer can conduct a search of that person without a warrant.  Officers may also conduct a search of the arrested individual’s vehicle without a warrant, assuming the individual was arrested just outside his vehicle.
  • ConsentA law enforcement officer does not need a warrant if an individual grants him/her permission to search a vehicle, a home, their person, or their belongings.  It’s important to note that an individual may also withdraw consent after it has been given.
  • Search of Items in Plain Site.  A police officer does not need a warrant to search items that are within plain site.
  • Emergency Circumstances.  If a law enforcement officer reasonably believes that evidence will be destroyed, there is a threat to another person’s safety, or that the suspect will flee before a warrant can be obtained, the officer may conduct a search without a warrant.
  • Automobile Passenger SearchesIf police officers have probable cause to search a car, they don’t need a warrant to also search a passenger’s belongings for the items which are the subject of the search.
  • Probation SearchesAlmost always there is a condition put on those individuals who are on probation that they will be subject to warrantless searches if law enforcement officers have reasonable suspicion to believe they are involved in criminal activity.  Here, law enforcement officers don’t need probable cause and they do not need a warrant.
  • Canine (Dog Sniff) SearchesNeither a warrant nor probable cause is needed for a drug sniffing dog to sniff around vehicles, luggage, or other belongings.  The US Supreme Court has held this way based on the reasoning that no person has any right to possess illegal drugs, and therefore a non-invasive search such as a dog sniffing for drugs does not invade anyone’s privacy rights protected by the Fourth Amendment.  However, different laws apply to more invasive canine searches, such as when a canine is inside your car.
When does a Law Enforcement Officer Need a Warrant to Search

A law enforcement officer needs a warrant to perform a search unless an exception exists (see above for a list of several exceptions).  In order for a warrant to be proper, it must specify the location to be searched and the items to be seized.  If the descriptions in the warrant are overbroad, not supported by probable cause, or are not “particular,” the warrant may be invalid.  Also, if the warrant was not issued by an authorized judicial officer, was not executed properly, or if law enforcement officers search places or seize items that were not specifically described in the warrant, the warrant may be invalid.

If a warrant is invalid for one of the reasons cited above, that doesn’t necessarily mean that the evidence obtained as a result of the search warrant will be inadmissible at trial.  If the law enforcement officer(s) conducting the search had a good reason to believe the warrant was lawful and acceptable, the court may decide to allow in the evidence obtained—even if the original warrant was invalid.

What is the Scope of a Search

It’s as important to understand the scope of a search as it is to understand the facts that gave rise to the search in the first place.  To determine what the scope of a search is, you can ask, “What is the police officer searching for?” If the officer is looking for drugs, he can only search those areas, compartments, or belongings that are capable of concealing drugs.  If the officer is looking for a gun, he can only search those areas, compartments, or belongings that are capable of concealing a gun.  Let’s look at a couple of examples to better understand the scope of a search:

  • Example 1.  Officer lawfully stops Defendant on the street.  After speaking with the Defendant, Officer has probable cause to believe Defendant is in possession of narcotics.  Officer handcuffs Defendant and begins to search him.  Officer finds Defendant’s phone in his pocket, and begins reading Defendant’s text messages.  Officer has exceeded the scope of the search because narcotics cannot possibly be found in a text message on a phone.  Lawfully, Officer could only search those areas where narcotics were likely to be found, such as pockets, waist band, shoes, socks, etc.  Anything beyond this is unlawful.  Therefore, anything the Officer read in the text messages will probably not be admitted in court.
  • Example 2.  Officer lawfully stops Defendant in his vehicle.  Officer has probable cause to believe Defendant is in possession of an illegal firearm.  Officer removes Defendant from the vehicle and begins searching it.  Officer may look in the trunk, under the seat, or in containers inside the car, but Officer may not open the ashtray to look for drugs. This would go beyond the scope of the search for which he is lawfully entitled to perform because a gun cannot be contained in an ashtray.  If Officer did open the ashtray just to see what he would find, and incidentally he found drugs, those drugs may not be admissible in court because they were discovered while Officer exceeded the scope of his search and thus violated Defendant’s constitutional rights.
What Happens if the Police Perform an Illegal Search or Seizure

An illegal search or seizure can occur when a law enforcement officer performs a search or seizure either (1) without probable cause, or (2) without a warrant when a warrant is needed.

Any evidence—that means, any type of information, object, or testimony—that is discovered or obtained as a result of a law enforcement officer’s illegal acts is subject to exclusion in the court of law.  In other words, the state may not be able to use such evidence in the prosecution of the defendant.  This includes evidence that is obtained indirectly, but as a result of the law enforcement officer’s illegal search or seizure.  This is called the “Exclusionary Rule.”

For example, Officer J stops a vehicle because he believes the driver has the look of a drug dealer.  Officer J’s beliefs do not rise to the level of probable cause or reasonable suspicion needed for Officer J to lawfully stop the vehicle, but Officer J stops the vehicle any way.  This is unlawful stop is an “unlawful seizure” under the Fourth Amendment.  After Officer J approaches the vehicle, he smells marijuana and orders the driver out of the car.  Officer J then conducts a search and finds marijuana in the glove compartment.  Most likely, the marijuana Officer J found in the car and his testimony that he smelled marijuana will not be admissible at a criminal trial because it was discovered as a result of an illegal stop / unlawful seizure.

The key thing to understand here is that the main purpose of the “exclusionary rule” is to discourage police officers from engaging in illegal activity.  When a police officer engages in illegal activity to acquire evidence, it often creates a ripple effect where one piece of evidence leads to the discovery of another piece of evidence which leads to the discovery of a third piece of evidence, and so on.  Courts will often bar all the pieces of evidence, all the ripples, from being used at the criminal trial to convict the defendant.