One of the wonderful things about The United States is the right to privacy. In order to protect this right, the Forth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures.
The amendment reads:
“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.”
Whenever law enforcement is participating in a search and seizure, there are applicable rules and exceptions. These rules come directly from the U.S. Constitution, along with court opinions and landmark cases. The rules and regulations that are related to search and seizures are quite broad which can unfortunately lead to questions and confusion.
The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement officers. A search and seizure is considered unreasonable if it is conducted by police without a valid search warrant, and does not fall under an exception to the warrant requirement.
At Schulze Law, we are firm believers that you should understand your rights. We rely on the police to keep us safe and treat us all fairly, regardless of race, ethnicity, national origin or religion, but sometimes that isn’t enough. By understanding your legal rights, you can protect yourself and your loved ones to the best of your ability.
Know your rights when police search you, your home or your car. We’ll help break down the legalities of if you can be searched without a warrant. If you have been searched without a warrant or have any questions, please contact Schulze Law immediately.
The Basics:
The Fourth Amendment (Amendment IV) to the United States Constitution prohibits unreasonable searches and seizures and requires any search warrant to be judicially sanctioned and supported by probable cause. It is part of the Bill of Rights.
Under the pressure of the police or a situation, individuals may not be aware of the rules and their rights under the law. Remember, under the Fourth Amendment, police officers must obtain written permission from a court of law to legally search a person and their property and seize evidence while they are investigating possible criminal activity. Any evidence obtained through illegal searches is not admissible in a court of law. But to make things a little complex, there are cases where police can legally search without a warrant if there is probable cause or if consent is given.
What is a search warrant?
The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require that the police obtain a search warrant before searching a person’s property. This includes one’s home, one’s car, a cellphone, iPhone or computer. A warrant is a legal order signed by a judge authorizing the police to search a specific location and seize specific materials from that location at a specified time. The police get search warrants by presenting sworn affidavits to judges or clerk magistrates. If the affidavits give enough information for “probable cause,” a court will order a search warrant and the police will be permitted to search that property.
What is probable cause?
According to Justia.com, The Supreme Court has defined “probable cause” as an officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur (Carroll v. United States, 267 U.S. 132, 149 (1925)). An officer may establish probable cause with witness statements and other evidence, including hearsay evidence that would not be admissible at trial. An officer’s suspicion or belief, by itself, is not sufficient to establish probable cause. (Aguilar v. Texas, 378 U.S. 108, 114-15 (1964)).
Police must show the judge that: Probable cause exists that a crime has occurred and evidence or contraband linked to that crime will more than likely be found in a certain location on the property or person at issue.
The Exclusionary Rule
According to Legal Dictionary, the exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant’s Fourth Amendment rights. The exclusionary rule is a court-made rule.
When is a warrant not required?
According to Legalzoom.com, there are times when police can perform a search without a warrant, and most searches occur without warrants being issued. The police can legally conduct a search without a warrant in situations in which certain exemptions apply.
Exemption 1 – Consent to Search: A police officer doesn’t need a warrant to conduct a search if a person with legal authority over the items or premises consents to a search. If a person freely and voluntarily agrees to a search of their property, without being tricked or coerced, the police can search this property without a warrant. Police do not have to inform you that you do have the right to refuse a search, and arrests can happen when people don’t know they had the right to refuse search and seizure.
Additionally, if two or more people live at the same location, usually one tenant can’t consent to a search of areas owned by another tenant. A tenant can consent to a search of the communal areas of a home, such as the living room or kitchen. A landlord is prohibited from giving consent to the search of his or her tenant’s private belongings, and the Supreme Court has also ruled that an individual cannot consent to the search of a house on behalf of a spouse. An employer can consent to a search of a company, which includes an employee’s work area, but not an employee’s personal belongings.
Exemption 2 – The Plain View Doctrine: An officer may seize property that is visible from a location where the officer is lawfully present, given the officer has probable cause to believe the property is contraband. Police officers can legally search an area and seize evidence if it is clearly visible. This might include items that are visible in the front seat of a vehicle during a lawful traffic stop. The police must still have probable cause, however, that the items are illegal.
Exemption 3 – Search Incident to Arrest: Police officers may conduct a limited search of a person when they have placed the person under arrest. The search must be limited to the area of the person’s immediate control and be for checking for weapons and evidence. If you are arrested for a crime, the police have the legal right to protect themselves by searching for weapons, evidence that could be destroyed, or accomplices to the crime. For example, if you are arrested for drug possession, the police can search for additional drugs by searching you, your home, or your car, and any evidence found can be used against you in a court of law.
Police can also perform what is called a “protective sweep” after an arrest. This is done if the police believe a dangerous accomplice or accomplices may be hiding inside a specific location. The police will walk through the location and can legally visually inspect places in which an accomplice may be hiding. In addition, the police can legally seize any evidence located in plain view during the sweep.
Exemption 4 – Exigent Circumstances: If the police feel that the time it would take to get a warrant would jeopardize public safety or lead to the loss of evidence, they can perform a search without a warrant. Courts have allowed warrantless searches in situations where it would be impractical or dangerous to delay a search just to obtain a warrant. For example, the police can use force to enter a home if it is probable that evidence is being destroyed, if a suspect is trying to escape, or if someone is being injured. The police officer’s responsibility to protect evidence, arrest a suspect, or keep an individual safe outweighs the search warrant requirement.
According to Justia.com the following are also exceptions:
Terry Stops: The Supreme Court held in Terry v. Ohio, 392 U.S. 1 (1968), that police may “stop and frisk” a person based on reasonable suspicion that the person has been, is, or will soon be involved in criminal activity. “Reasonable suspicion” is a lower standard than “probable cause.” Evidence discovered during what is now known as a Terry stop is admissible, even if police did not have a warrant.
Border Searches: Officials at the United States border, as well as airports and seaports that handle international travel, have broad discretion to conduct searches of individuals, their personal effects, and their vehicles.
Automobile Exception: Related to the “lawful arrest” exception, this allows police to search a vehicle without a warrant during the lawful arrest of the driver, but only if they reasonably believe that (1) the person under arrest might still be able to access the vehicle’s passenger compartment, or (2) the vehicle contains evidence relevant to the offense for which they are arresting the person.
Know Your Rights
If evidence is gathered without a valid search warrant, and no exception to the warrant requirement applies, the evidence may be subject to the exclusionary rule. The exclusionary rule prevents illegally obtained evidence from being admitted in a court of law. When law enforcement officers violate an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence taken from that search or seizure will almost certainly be kept out of any criminal case.
Often, it may be in your best interest to cooperate with officers to avoid injury or being charged with interfering with a police investigation. But legally, you’re not required to give consent to a search without a warrant. Make sure you ask the officers for identification and explanation.
Please contact Schulze Law immediately if you’ve been searched without a warrant. A Massachusetts search warrant is not the final word and our practice can help. Our experienced attorneys can protect you and your legal rights.
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