In many criminal prosecutions, the government gathers its strongest (and sometimes only) evidence through a search of the defendant or of the defendant’s property. The Fourth Amendment of the United States Constitution protects American citizens against unreasonable searches and seizures. Specifically, 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.”
This post will provide an overview of the Fourth Amendment, how it applies, and some common exceptions to requirement that police obtain a valid warrant based upon probable cause.
The first real inquiry one should make when challenging the validity of a government search is whether a reasonable expectation of privacy exists. This is critical, because if the person challenging the search does not have a reasonable expectation of privacy in the property searched or seized, then that person lacks legal standing to challenge the search. The reasonable expectation of privacy analysis is incredibly fact-sensitive, and should be reviewed on a case-by-case basis. However, there are certain scenarios where a reasonable expectation of privacy almost always exists. For example, if you own, live on, or are an overnight guest at the premises searched, you have a reasonable expectation of privacy in that premises, and would have standing to challenge the search. On the other hand, there are also scenarios where courts are not going to find a reasonable expectation of privacy. These “no standing” categories generally deal with things that you hold out to the public, such as the sound of your voice, the paint on your car, the location of your car on a public road, the style of your handwriting, or anything that can be seen across open fields.
If you have a reasonable expectation of privacy, the next question we need to answer for Fourth Amendment purposes is whether the police have a valid search warrant. For a search warrant to be valid, it must (1) be based on probable cause and (2) state with particularity the place to be searched and the things to be seized. Probable cause exists if there is a fair probability that evidence of a crime will be found in the area searched. If police have a valid warrant, they are allowed to search the area(s) listed in the warrant and seize the items listed in the warrant, if found during the search.
While police are generally required to get a warrant before executing a search or seizure, courts have developed quite a few exceptions to that general rule over time. In these certain scenarios, police are not required to get a warrant at all. Some of the more common exceptions to the warrant requirement include:
1. Search Incident to Arrest.
Police are permitted to search you following a lawful arrest, with some limitations. First, the arrest must be legal. If the arrest is illegal, the search incident to that arrest is also illegal. Next, the arrest and search must take place at the same time and place. For example, police cannot arrest someone in Indianapolis, transport that person to Cincinnati, and then search the person incident to arrest once they get to Cincinnati. Police are also generally limited to searching the person and the area within the person’s wingspan when searching incident to arrest.
2. Vehicle Search Incident to Arrest.
There are also circumstances that allow police to search a vehicle incident to arrest. Police may search the interior of a vehicle incident to arrest only if (1) the arrestee is unsecured and can still access the vehicle, or (2) the police reasonably believe that evidence of the offense that the person was arrested for may be found in the vehicle. It is important to note here that it does not matter what evidence police ultimately find during a vehicle search incident to arrest, so long as the search itself was valid.
3. Automobile Exception.
Police must have probable cause before searching anything or anyone within the purview of the automobile exception. The probable cause justifying a warrantless vehicle search under this exception can arise after a traffic stop, but must arise before any search. If, and only if, police have probable cause before searching anything or anyone, then they can search the entire car. That means they can search the entire interior, including the trunk, and any luggage or containers inside the car—so long as the luggage or containers may reasonably contain the item that they have probable cause to be searching for.
4. Plain View Exception.
The plain view exception permits police to seize evidence of crimes that, not surprisingly, are in the plain view of the police. The two key factors in determining the validity of a plain view seizure are (1) whether the police are legitimately present at the location where the item is seized and (2) whether it is immediately apparent that the item is contraband. For example, if a police officer bursts into your home for no apparent reason and finds marijuana on your table, the officer is not likely “legitimately present,” and the evidence should be suppressed. However, if a police officer makes a valid traffic stop and sees marijuana on your passenger seat, he may properly seize it under the plain view exception.
Police may search a person or property if given consent. For consent to be valid, it must be voluntary. Additionally, if two or more people have authority to consent to a search of certain property, any one of those people can consent to a warrantless search. However, if all people with authority are present, and even one person does not consent to a warrantless search, then that person’s refusal overrides the others’ consent.
Fourth Amendment search and seizure is tremendously nuanced, but is one of the most important areas of the law for a criminal defense attorney to know and understand. If the government violates the Fourth Amendment, evidence derived from its violation may be suppressed—meaning it can’t be used at trial. If the government cannot use evidence at trial, it may have no choice but to dismiss charges.
Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.