Under the Fourth Amendment to the constitution, people have a right to be free from unreasonable searches and seizures. The Fourth Amendment requires officers to have a warrant prior to conducting a search. There are some exceptions to the warrant requirement which we will discuss as well.

Over the years, The United States Supreme Court has decided cases shaping our rules relating to the Fourth Amendment. So we look to the caselaw to determine the reasonableness of a search. Essentially, a “search” occurs only if a person has a “legitimate expectation of privacy” in the place or thing that a police officer searches.

Whether someone has a legitimate expectation of privacy depends on two factors: 1. Does the person subjectively, in his own mind, expect that a place or thing is private. And 2. Is a person’s subjective expectation objectively reasonable, meaning that society as a whole is willing to honor it?

If the answers to both questions are, “Yes,” the police activity is considered a search. A judge would then determine whether the search is reasonable.

A search warrant is an order signed by a judge that allows the police to search for particular items at a particular place and time. Officers obtain a warrant by providing a judge with information, usually a sworn statement based on what the officer or another witness observed. The judge must be satisfied there is probable cause in order to issue a warrant. Essentially, the officer has to identify objectively suspicious activity in order to establish probable cause.

Once the officers have a warrant, they are permitted to search the areas indicated on the warrant. If officers conduct a search without a warrant, the search may be considered unreasonable which may result in evidence being thrown out. Again, in order to conduct a search, a warrant is required, unless an exception applies.

Consent Searches

A search conducted without a warrant may be justified if the person grants consent to a search. An officer may not have probable cause to conduct a search or make an arrest. But if that officer asks for permission to search one’s house or car and the person says yes, then that would likely be considered a consent search, and a warrant would not be required.

Plain View Doctrine

An officer does not need a warrant to seize evidence that is in plain view where the officer has a right to be. If an officer pulls someone over for having a busted taillight, and while the driver reaches for his registration, the officer notices a baggie of meth sitting in the center console in plain view, the officer would be able to seize the baggie even though he did not have a warrant.

If however, officers unlawfully enter a home without a warrant, and they see illegal drugs in plain view on a coffee table, arguably, they would not be able to legally seize the drugs because the officers did not have a right to be in the home.

Search Incident to Arrest

Officers do not need a warrant to conduct a search incident to an arrest. Upon arresting a suspect, an officer has the right to protect himself by searching the suspect for weapons, and search for evidence the suspect might attempt to destroy.

Cell Phone

Cell phone searches are a hot-button issue. So much personal information is stored in our phones. The Supreme Court has ruled that we have a legitimate expectation of privacy with respect to the contents of our phones and officers must have a warrant to search them. But remember, if you grant consent to search, you’re waiving your rights under the fourth amendment.

“Stop and Frisk” Rule

When police officers have information that gives them “reasonable suspicion” that a person has committed a crime, the officers can briefly detain the person for a brief investigation that is less than an arrest or complete search. If they also have reason to believe the detained person may be armed and dangerous, they can conduct a limited pat-down to check for concealed weapons. This is called the “stop and frisk” rule. A warrant is not required in this situation.

Vehicle Searches

Cars present a unique set of issues because of their mobility and the risks involved during traffic stops. An officer is permitted to order a driver out of the vehicle during a traffic stop. If an officer reasonably believes the driver or passengers might be carrying weapons, they can conduct a short pat down. However, the officer cannot search the car without a warrant unless he has reason to believe the car has a weapon or other evidence of crime that someone other than the driver might dispose of.

If a driver is arrested for a DUI or reckless driving, and the car is towed and impounded, the officer can conduct an inventory search of the vehicle. The search is for the protection of the lot, and to protect against claims that items were stolen from the car.

Exigent Circumstances

There are emergency situations in which the preservation of evidence and public safety concerns allow officers to conduct searches without a warrant. An example of such an emergency situation would be an officer chasing an armed robbery suspect who then makes it inside his apartment. The officer would be able to enter the home without a warrant and search the suspect.

Consequences of an Illegal Search

So what happens when items are seized in violation of the Fourth Amendment? Under the “Exclusionary Rule,” items seized in violation of the Fourth Amendment cannot be used as evidence against a defendant in a criminal case. The argument in support of the exclusionary rule is, if illegally seized evidence is not admissible in court, then officers will be less likely to conduct illegal searches and seizures.

How Is An Illegal Search and/or Seizure Challenged?

A San Diego Criminal Defense Attorney challenges an illegal search or seizure by filing a Motion to Suppress evidence. The argument is generally that the police did not have a warrant to search, and no exceptions to the warrant requirement apply. Therefore, any evidence seized should be excluded. The prosecutor has the opportunity to file a reply as to why the evidence should not be excluded. There is then a court hearing where the officers who conducted the search or seizure are questioned under oath. The judge then issues a decision as to whether the evidence will be excluded.

The search and seizure laws are pretty complex. In law school, these topics are the basis of a full semester course. But, hopefully you now have a better understanding of the fourth amendment. Stay tuned for more useful information in our Criminal Law 101 series.