Although men and women in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are permitted, where justified, to search your premises, car, or some other property and assets in order to look for and seize unlawful items, stolen goods or evidence of a crime. What rules must law enforcement follow when engaging in searches and seizures? What can they do in upholding the laws, and what can’t they do?
What the authorities May Do:
- Under the Fourth Amendment to the U.S. Constitution, law enforcement officials may engage in "reasonable" searches and seizures.
- To prove that a search is "reasonable," the authorities must generally show that it is more likely than not that a crime has transpired, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the criminal offense. This is named probable cause.
- In a few situations, law enforcement need to first make this showing to a judge who issues a search warrant. In the majority of special circumstances, however, law enforcement may be able to conduct a search without the need of a warrant. In fact, virtually all searches are "warrantless."
- Police may search and seize items or evidence when there’s no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the authorities can take them and, in effect, no "search" has happened.
Note: In deciding whether or not there was a "legitimate expectation of privacy," a court will consider two important things:
- Did you have an expectation of some degree of privacy?
- Was that expectation reasonable in our society’s view?
Example: You have a semi-automatic rifle that you had stolen from a pawn shop. You leave the firearm laying on the hood of your vehicle when you get home. You don’t have a "legitimate expectation of privacy" with regard to items you leave on the hood of your vehicle, and police officers may take the weapon. No search has happened.
- Police may use first-hand info, or tips from an informant to justify the need to search your property. If an informant’s information is used, the police must prove that the information is reliable under the circumstances.
- Once a warrant is obtained, police officers may enter onto the specified area of the property and search for the items listed on the warrant.
- Police could very well extend the search beyond the specified area of the property or include various other items in the search beyond those specified or listed within the warrant if it is necessary to:
- Ensure their safety or the safety of others;
- Prevent the destruction of evidence;
- Discover more about possible evidence or stolen items that are in plain view; or
- Hunt for evidence or stolen items that, based upon their initial search of the specified area, they believe may be in a different location on the property.
Example: The police have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your home to go down to the basement, they see a cache of firearms sitting on your kitchen table. Some may take the guns to guarantee their safety while searching your basement.
- Police may search your property without the need of a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
- Police may search your person and the immediate surroundings without a warrant when they are placing you under police arrest.
- If an individual is arrested in a residence, law enforcement may make a "protective sweep" of the home in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the authorities must have a reasonable belief that an accomplice may be around.
Example: Police officers arrest you in your living room on criminal charges of murder. Some may open the door of your coat closet to make certain that nobody else is hiding there, but may not open your medicine cabinet due to the fact that an accomplice couldn’t hide there.
- When you are being taken to jail, police may perform an "inventory search" of items you have with you without the need of a warrant. This search may include your vehicle if it is being held by law enforcement in order to make a list of all items inside.
- Police may search without the need of a warrant should they reasonably fear for their safety or for the public’s safety.
Example: If the authorities drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without having a warrant.
- If it’s necessary to prevent the imminent destruction of evidence, the police may search without the need of a warrant.
Example: If the authorities see you trying to burn a stack of cash that you stole from a bank, they could perform a search without a warrant in order to avoid you from further destroying the cash.
- Perform a search, without the need of a warrant, when they are in "hot pursuit" of a suspect who enters a private dwelling or area following fleeing the scene of a criminal offense.
Example: If the authorities are chasing you from the scene of a murder, and you run into your apartment in an effort to get away from them, they may follow you into the apartment and search the area without the need of a warrant.
- Police may perform a pat-down of your outer clothing, in what is named a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
What the authorities May NOT Do:
- The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
- If evidence was obtained through an unreasonable or unlawful search, the police may not use it against you in a trial. This is designated the "exclusionary rule."
- The police may not use evidence resulting from an unlawful search to obtain some other evidence.
- The law enforcement may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.
- Unless there is a reasonable suspicion that it contains evidence, unlawful items, or stolen goods, law enforcement may not search your motor vehicle. If your vehicle has been confiscated by police officers, however, they can search it.
- Unless they have a reasonable suspicion that you are involved in a criminal activity, the authorities may not "stop and frisk" you. Should they have a reasonable suspicion, they can pat down your outer clothing if they are concerned that you might be concealing a firearm.
Houston Search & Seisure Defense: Hire the Most Respected Houston Lawyer
Courts quite often need to determine case-by-case whether or not the circumstances in which the police searched without a warrant had been legal. Therefore, if the search has already occurred and you are not sure of its legality, speak to the Leading Houston Drug Crimes Attorney as soon as possible. And any time a search has not yet been conducted, make sure that you understand your rights in advance.