Police Searches With and Without a Warrant

The Fourth Amendment protects individuals from unreasonable search and seizure. This protection extends to people and their property in places where a reasonable expectation of privacy exists.

Unless police have a warrant to search, they do not have the right to search or seize your property unless one of six exceptions applies.

Searches with a warrant

A warrant is an order signed by a judge acknowledging that probable cause exists to search an area.

The Fourth Amendment requires that all warrants be:

1. Supported by oath or affirmation (i.e. a magistrate or judge)


2. Specific in describing the place to be searched


3. Specific in describing the people or things to be seized.

Most challenges to search warrants and the evidence they produce attack the second and third factors above in a Motion to Suppress Evidence. This will keep evidence the police obtained against you illegally from being used against you in court. If a warrant is impermissibly vague under the Fourth Amendment as to what place should be searched or what police should search for, it gives law enforcement too much discretion and the judge should throw it out.

Searches without a warrant

There are several types of exceptions that allow police to conduct a search without a warrant. Any challenge to evidence that you think was the product of an illegal search or seizure should be raised in a Motion to Suppress.

Whether or not one of these exceptions applies depends on your expectation of privacy in that circumstance.

EXPECTATIONS OF PRIVACY, RANKED
Your automobile Typically higher expectation of privacy than your person
Opaque containers that contain personal property (the contents of a clear container would be subject to the Plain View Exception if the officer was legally in the place where he saw it) Higher expectation of privacy than your automobile
Your home, i.e. primary residence Highest expectation of privacy

1. Plain View Exception: If police are legally in an area and see evidence to a crime in plain view, they do not need a warrant to seize that evidence. But if, for example, an officer enters your home illegally (a person’s home has the highest expectation of privacy), he cannot seize and arrest you for evidence he sees in plain view there.


2. Consent: If someone the police reasonably believe has authority to give consent, gives consent to a search, the police do not need a warrant for search and seizure.
   
   
   • For example, if a person’s girlfriend gives police a key to her boyfriend’s apartment, and the police reasonably believe she lives there as well, their search of the apartment, without more, does not violate the boyfriend’s Fourth Amendment rights.
   
   
   • The person giving consent must have the mental capacity to give consent. If your six-year-old answers the door any “consent” they give police to enter and search does not count.
   
   
3. The Motor Vehicle Exception: Law enforcement can search your car without a warrant if they have probable cause of a crime other than the traffic offense for which they pulled you over.
   
   
   • The “practical mobility” of cars makes it impractical for an officer to take the time to get a magistrate to sign a warrant. The person could have left the jurisdiction by that point.
   
   
   • Additionally, people have a lower expectation of privacy in their cars than in their houses or personal containers. This is because:
     
     
     • Automobiles provide clear visibility through their windows of their contents. Similar to the “plain view” exception, police can get probable cause to search further if something illegal is in plain sight.
     
     
     • A car’s primary purpose is to transport people, not store property. Personal containers that contain property are usually subject to a higher expectation of privacy
     
     
4. Emergency/Hot Pursuit Exception: In certain emergency situations, police are allowed to search without a warrant because a particular situation makes law enforcement’s goals more compelling.
   
   
   • This is typically used because law enforcement reasonably believed that if they did not immediately conduct a warrantless search, a person would hide or destroy evidence or reach for a weapon.
   
   
   • It also allows police to enter someone else’s private property without a warrant if a suspect is already being pursued by police and enters that property.
   
   
5. Search Incident to Arrest Exception: This exception justifies police being able to perform a warrantless search of an arrestee and items within that person’s immediate control either during or immediately after a legal arrest. This policy is to be used in emergency circumstances like the ones described above.
   
   
   • EXCEPTIONS TO THE EXCEPTION: Police cannot search your car incident to arrest UNLESS:
     
     
     • They have reason to believe your car contains evidence of the crime for which you were arrested. For example, if you are arrested for a drug crime, the officer might reasonably believe that your car contains further evidence of drug activity.

     OR

     • You could have conceivably reached into your car at the time of officer’s search of the vehicle (i.e. to try to conceal/destroy evidence or reach for a weapon). If you are already detained in the back of the police car, police cannot say this circumstance applies.
     
     
6. Stop and Frisk Exception: If police have reasonable suspicion of a criminal act (more than mere suspicion but not quite probable cause), they have the right to stop that person.
   
   
   • If police have reason to believe you are armed and dangerous, they are allowed to “frisk” you, or do a pat-down outside of your clothes to determine if you are carrying any weapons. This does not rise to the level of a “search” and they can use any evidence they find this way against you.

GENERAL OVERVIEW
Type of Warrantless Search Level of Suspicion Needed Unless… Then…
Search Incident to a Lawful Arrest Probable cause of what you were originally being arrested for The original arrest was unlawful Evidence found during the search should be excluded
Motor Vehicle Probable cause of a crime besides the traffic offense for which they pulled you over
Stop and Frisk Reasonable suspicion of a criminal act
Consent None The person that gave consent did not have the legal capacity to give it Evidence found during the search should be excluded

If you or someone you love has been charged with a crime, it is important to have the guidance of an experienced and dedicated criminal defense attorney ready to assert any relevant defense on your behalf, including those against unreasonable searches and seizures by police. The defense attorneys at Arnold & Smith, PLLC are standing by to help guide you through this overwhelming time and fight to defend your rights. Contact us today for a free consultation.

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