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One of the greatest freedoms protected by the?US Constitution is your right to privacy, that is, the right to be free from government interference and intrusion. The Fourth Amendment protects your privacy by limiting law enforcement agents’ power of search and seizure. Generally, this means that they can’t search you or your home or seize your personal property without having a good reason for doing so. And, unless some specific exception applies, they have to have a warrant before they make a search or seizure.
What’s a Search Warrant and How Do They Get One?
Think of a search warrant as a special permission slip. It allows law enforcement agents or officers to search a specific place or area at a specific time and seize specific items. For example, say that detectives from the local police department believe you’re involved in trafficking or selling marijuana out of your home. The detectives may ask for a search warrant authorizing them to search your home at 10 P.M. and seize any marijuana they find there.
To get a warrant, agents need to:
- Ask a neutral and detached magistrate or judge for a warrant. A “magistrate” is similar to a judge. He’s usually an attorney or retired judge who’s been hired by the court to handle certain matters to ease the judges’ busy schedules. “Neutral and detached” means that the magistrate isn’t involved in the case or the investigation and doesn’t have a personal bias or “axe to grind” with the suspect. Persons who aren’t neutral and detached include police officers, a district attorney, state attorney general or a justice of the peace who receives a fee for each warrant issued
- Convince the magistrate that there is probable cause to search for and seize property. Generally, there’s probable cause to search when there’s a fair probability that contraband or evidence of a crime will be found in the place that the police want to search. The agents need to give the magistrate this information under oath or affirmation, that is, they need to swear that the information is true. Typically, they give the magistrate an affidavit?- a written statement given under oath. However, a search warrant may be given when the agents give the magistrate this information orally
- Identify for the magistrate the particular and specific person or property to be searched and any person or property to be seized. This is called the particularity requirement. Generally, the street address of your house or the apartment number will be used; or a detailed description of you will be used if the warrant is for your body. It must also state that the warrant will be executed within 10 days and that it will be executed during the “daytime”?- which generally is from 6 A.M. to 10 P.M.?- unless the magistrate authorizes a different time
If the magistrate is convinced that the agents will find evidence of crime in the place they want to search, he’ll issue a warrant. Although there some exceptions, the agents are allowed to search only the area or place specified in the warrant and they can seize only the items specified in the warrant. And, they can only search in a place where the specified items are likely to be found. For example, if the warrant authorizes a search of your backyard, the agents generally can’t enter and search your home. Similarly, if the warrant is for a stolen car, they can’t look in your desk or dresser drawers.
When Do They Need One?
The main thrust of the Fourth Amendment is to protect your privacy. It does that by prohibiting law enforcement or government agents from making “unreasonable” searches and seizures. In the terms of the Fourth Amendment, then, any search or seizure made without a warrant is unreasonable. So, the general rule is pretty straight forward: Law enforcement or government agents must get a warrant before any search or seizure may take place. This is commonly known as the Fourth Amendment’s “warrant requirement.”
And if they don’t get a warrant or violate the terms of a warrant? The penalty for violating the Fourth Amendment by making an unreasonable or unlawful search or seizure can be severe. Under the “exclusionary rule ” and the “fruit of the poisonous tree ” doctrine, any evidence that’s obtained through an illegal search or seizure can’t be used against you in court.
There are several exceptions to the warrant requirement, though. That is, there are certain circumstances or situations in which law enforcement agents may make a search or a seizure without a warrant (called a “warrantless” search or seizure). Some of the most commonly used exceptions include:
- Consent. If agents ask if they can search your house, office, car, or even your pockets, and you say “yes,” they can search it without a warrant. And, any evidence of a crime or contraband can be seized and used against you in court. As a general rule, children and minors can’t give the agents consent to search your home or office. Also, if you have a roommate or share an office, she may give the police permission to search the common areas, like the kitchen or reception area, but she can’t give consent to search your personal space, such as your bedroom or private office. To be on the safe side, if you have a roommate, house guest or tenant, or a co-worker, tell him that she can’t give the police consent to search your private areas
- Search incident to arrest: If you’re being arrested, the police may search you and the immediate area surrounding you for weapons or contraband. That includes your car (except the trunk), but if they have probable cause to believe that the trunk contains evidence of a crime or contraband, they may search it. Also, if you’re being arrested inside your home, they may make a “protective sweep” of the house to make sure there’s no one there that poses a threat to the officers or other persons in the house
- Exigent circumstances: These are situations where there’s no time to get a warrant because there’s an immediate threat or danger of someone getting hurt or the destruction of evidence. For example, if police officers are chasing a suspect in a bank robbery and he runs into your house, they may enter and search the house for the suspect without a warrant
- Plain view. If agents are in a place lawfully, they may seize any evidence of a crime or contraband without a warrant so long as it’s in “plain view.” For example, if you call the police to report acts of vandalism done to your home and, while the officer is on your property she notices marijuana growing in your garden, she may seize the plants without a warrant
- Airport and border searches. To protect the public at large, agents may search you and your luggage for contraband and weapons without a warrant while you’re in an airport or a border crossing. Border searches are either “routine” or “non-routine.” Routine searches can be done regardless of whether agents suspect you of committing a crime. Using x-ray machines to examine the contents of your luggage or even opening your bags are routine searches. Non-routine searches require that agents have a “reasonable suspicion” of criminal activity. Non-routine searches include strip and cavity searches
Stop and frisk
. If an agent has a reasonable suspicion that: (1) you’re engaged in or about to engage in criminal activity, and; (2) you have a weapon, and; (3) you pose an immediate threat to the officer or to the public at large, the officer may stop or “detain” you and conduct a “pat-down search” (or “frisk”) to determine if in fact you’re carrying a weapon. If the officer feels something in your pocket or clothing that he reasonably believes is a weapon, he may reach into your pocket or clothing and seize the item
- Inventory searches. If your car is impounded, agents may search the entire car, including the trunk, for the purpose of inventorying its contents. This is done to protect: (1) Your property while it’s in police custody; (2) The police from claims of lost property, and; (3) The police from threats posed by dangerous materials in the car
Questions for Your Attorney
- I’m 19 years old and go to college but still live at home with my parents. My mother gave the local police consent to search my room after they told her I was a suspect in a gambling operation. They seized my computer. Was this a legal search and seizure?
- I was passenger in my girlfriend’s car when she was stopped for speeding. The officer thought she’s been drinking and ordered us both out of the car. The officer then frisked us both and found marijuana in my pocket. Was this legal?
- A mall security guard stopped in the mall and searched through my backpack because he suspected that I was shoplifting. He found some marijuana and called the police. Was this legal?