Criminal Law

Understanding Search and Seizure Law

One of the hallmarks of the US criminal justice system is our search and seizure law. The Fourth Amendment to theĀ US Constitution guarantees the right to be free from unlawful or "unreasonable" searches and seizures by the police and other law enforcement personnel. Generally, this means that the police have to have a good reason before they may search you or your property, seize your belongings or even seize or arrest you.

The key term here is "unreasonable." Of course, not all searches and seizures are illegal. The lynchpins to the search and seizure law are probable cause and the expectation of privacy.

Probable Cause

In simple terms, probable cause means that there are facts or circumstances to justify a search or seizure of a place, things or a person. Generally, this means that there's a good reason to believe that a person is or has committed crime or that evidence of a crime can be found in a particular place. Probable cause is the driving factor for any search or arrest.

With probable cause, a police officer may:

  • Convince a judge or magistrate to issue a warrant that authorizes him to search a certain and particular place for certain and particular things and seize them, or to arrest a particular person, or
  • Conduct a search and seize evidence of a crime, or make an arrest, without a warrant, if there are "exigent" or emergency circumstances that make getting a warrant impractical

For example, during an investigation, police officers gather evidence that a suspect is selling illegal drugs from his home. The officers may ask a judge or magistrate for a search warrant for the home (and an arrest warrant for the suspect), and if the magistrate thinks there's enough evidence, she'll issue the warrant(s). However, if during a stakeout the officers learn that the suspect is about to destroy the drugs in his home, the officers may be justified to enter the home, search it, and seize any drugs and arrest the suspect, all without a warrant.

As a general rule, the police need to get a warrant. It's the mechanism that makes the Fourth Amendment work, that is, it makes sure that a search and seizure is reasonable. If warrantless search and seizure is conducted, the police have to prove that a warrant was needed or that there was no time to get one.

Expectation of Privacy

Generally, unless you have a "reasonable expectation of privacy" in a certain place or thing, it may be searched and/or seized by the police without a search warrant. In other words, the Fourth Amendment doesn't apply to any place or thing in which you don't have a reasonable expectation of privacy. You have a reasonable expectation of privacy if:

  • You actually expect privacy in the place or thing. This is called the "subjective" expectation of privacy, and
  • Your expectation of privacy is one that that society as a whole would think is legitimate and reasonable. This is called the "objective" expectation of privacy

Some examples of places or things where you may have a reasonable expectation of privacy include:

  • Your home, or anywhere you actually live, including a rented apartment or a hotel room
  • The trunk of your car
  • Luggage or other containers that aren't transparent or see-through, even if you're carrying it in a public place, like an airport or bus station
  • Your business office
  • A public telephone booth, once you've shut the door

On the other hand, there are many places and things in which there is no reasonable expectation of privacy, such as

  • Things that are in "plain view," that is, exposed or out in the open that anyone can see. Illegal drugs or weapons on the front seat of your car are good examples
  • Portions of your business office or building that's open to the public, such as a reception area
  • Public places, likes restaurants and parks
  • Your trash or garbage, once you placed it at the curb for pick-up or collection

Protect Yourself

The laws on search and seizure can be complicated, and the facts and circumstances of each particular case are very important to determining if an unlawful search and seizure has taken place. If you or your property has been searched already, you should contact an attorney to make sure that your rights are protected.

Questions for Your Attorney

  • A police officer called me from my home about a break-in. When I got there, they told me that they looked though my home and didn't find the person who broke in, but they found a small amount of marijuana in a drawer in my bedroom. I was then given a ticket for possession of marijuana. Is this legal? Can I fight it?
  • Can an officer listen to conversations taking place in my house through an open window?
  • My landlord gave the police permission to search my apartment. They found a marijuana plant and I was arrested. Was this a legal search and seizure?

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