There’s a lot about search and seizure law I can’t fit into a post. Heck, there’s enough that they teach entire classes for a semester at law school. But I wanted to give a primer on police searches and seizures because I believe an informed public is a safe one.
The fourth and fourteenth amendments to the constitution guarantee that citizens should be free from unlawful search and seizure. This is basically your right to privacy. Whether it is your house, your car, or your person, you have the right to be free from anyone invading your privacy, including police.
So why do cops pat me down, or search my car, or raid my house?
Lets take a look at a few different ways the police can search you (or your stuff.)
If a cop wants to search a car or a house, they need a warrant. That’s it. There are exceptions to the warrant requirement, to be covered next, but this is nonetheless the absolute truth. There is a presumption that a search done without a warrant is illegal.
A warrant is obtained by an officer who believes probable cause exists that a crime is being (or has been) committed. They draft the required paperwork, take it to a judge for review and signature, and then the warrant is signed. The warrant is a court order allowing the police to do whatever is written on there. Anything found as a result of the warrant will become evidence and will be completely admissible in court. Yes, there are ways to undercut a warrant. But that’s a post for a different day.
There are times when the law says “we want you to get a warrant but, because the circumstances might render a warrant impractical, we will let you search anyway.”
Exigent means emergency, which means under life saving circumstances. So if an officer is in hot pursuit of an escaped felon who runs into a house, a warrant isn t required to follow that felon into the house. When they’re running through the house they happen to see your cocaine cutting operation. You’re in trouble.
Search Incident to Lawful Arrest
If you’re being arrested, anything on your person is fair game to be found without a warrant. The arrest must be valid under law. For the search to be valid, an officer must articulate probable cause that the person committed a crime prior to the search of the person. The search of a person under arrest is subject to the areas under that person s immediate control.
If police ask “do you mind if we search your car?” and you say “go ahead,” then you have just consented to police searching your vehicle. Anything they find will be fully admissible in court because they did not violate your rights. You let them.
Same goes for searching your house, your wallet, anything. If police are asking permission to search you, it’s because they do not have the lawful authority to do so . I’ve had cases where the cops say things like “look, we know you have [insert something illegal] so if you cooperate now and let me search your purse, we will go easy on you.” But they did not mean that. They searched. They found syringes. And they charged my client with a crime. So where was the benefit? All because she consented to the search. She handed them the evidence.
In addition, there are several legal issues officers must overcome when conducting interviews, interrogating and taking statements and confessions, including:
1. Who can consent to a search;
2. What constitutes voluntarily consent; and
3. What limitations does the law impose on those conducting the search.
If an officer is lawfully in a place and sees contraband, stolen property or other evidence of a crime, the officer can seize it without a search warrant. If you leave it out in the open for anyone to see, you’ve waived your right to privacy.
People turn over found property to the police. Anything considered abandoned can be inspected in order for police to determine whether it’s safe or how to locate the owner. If you left your property somewhere, intentionally or not, you’ve waived your right to privacy as to that item.
Impounded Vehicles Inventory
Police tow cars all the time. As long as they are lawfully towing the vehicle (which is a complex issue by itself), then impounded vehicles may be searched and inventoried using the standard police procedures to secure the vehicles and its contents. Anything found during a valid inventory search can be admissible in court. An inventory search cannot be used as a pretext for discovering incriminating evidence.
Motor Vehicle Exception
There’s a lot of varying caselaw on searching vehicles. Basically, in Arizona v. Gant the Supreme Court said that police can search a vehicle when they have probable cause to believe that evidence of the crime they’re investigating will be found in the vehicle. If a driver is stopped for driving while suspended, a subsequent search will not be valid under the motor vehicle exception because there is no physical evidence of this crime reasonably anticipated from a search.