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Have the police seized your money or property but not charged
you with a crime? Read on!
What is the Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable
searches and violations of privacy. The Fourth Amendment states, "The
right of people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the person or things to be seized."
Are all "searches" protected by the Fourth Amendment?
No. Before a court will even entertain the possibility that the search
in question was unreasonable, the person being searched must have had
a "legitimate expectation of privacy." To determine whether
the defendant had a "legitimate expectation of privacy" the
courts will look at the following factors: (1) did the person subjectively
or actually expect some degree of privacy, and (2) is the person’s
expectation objectively reasonable, that is, one that society is willing
to recognize?
EXAMPLE #1 The police install a hidden video camera
in the shower area of a local fitness club. Most people who use the
shower in their fitness club have a subjective expectation of privacy.
Privacy in a shower area is an expectation that society is willing to
recognize. Therefore, the installation of a hidden camera by the police
in a fitness club’s shower area will be considered a "search"
and subject to the Fourth Amendment’s requirement of reasonableness.
EXAMPLE #2 While John is making a telephone call
in a glass enclosed phone booth; he places a bag of cocaine on top of
the phone. A police officer walking by notices the bag and arrests John
for possession of a controlled substance. At trial, John tries to argue
that the search of the phone booth was unreasonable because the officer
lacked a warrant. This argument will fail because the court will never
even get to the reasonableness of the search. When police find a bag
of cocaine on the top of a phone in a phone booth, it is not a "search"
for Fourth Amendment purposes. It is very unlikely that John would think
that a public phone booth is a private place, and even if John did,
society is not willing to extend the protections of privacy to public
pay phones.
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police
officers to conduct a search of a specific location. Before a search warrant
may be issued, there must be a showing of probable cause. What is "probable
cause?" This is a difficult one. There is not a bright-line rule
establishing precisely what is and what isn’t probable cause. However,
what has become apparent is that a finding of probable cause requires
objective facts indicating a likelihood of criminal activity. A police
officers "hunch," with nothing more, will not satisfy the requirements.
Example: Officer Doright observes Tom and Dick
walking down the street. Officer Doright has a "hunch" that
Tom and Dick are "up to no good." Armed with nothing more,
Officer Doright goes to the local judge and attempts to get a search
warrant for the boy’s home. Should a judge grant the warrant?
No. A police officer’s "hunch," with nothing more, will
not satisfy the probable cause requirement. However, if Officer Doright
observed Tom and Dick conduct a drug deal, then probable cause would
likely exist for a warrant to search their home.
If a police officer knocks on my door and asks to search my home,
do I have to let the officer in?
Unless the officer has a warrant, you are under no legal obligation to
let the officer search your residence.
What if I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person,
then the officer can conduct a full search without a warrant. Anything
that the officer finds can later be used against you in court.
What is the "Plain View" doctrine?
Police officers do not need a warrant to seize contraband that is in "plain
view" if the officer is in a place that he or she has a right to
be.
EXAMPLE: Officer Doright is standing in your doorway talking to you about
the weather. While talking, Officer Doright notices a bag of cocaine and
a sawed-off shotgun on your couch. Officer Doright can legally seize these
items without a search warrant because they are in "plain view."
If I am arrested, can the officer search me?
Yes. Police officers do not need a warrant to conduct a search after making
an arrest. After making an arrest, the officer can legally search the
person being arrested and the area in the immediate control of the person.
Disclaimer: The information contained at this site is for
informational purposes only. These materials do not constitute the provision
of legal advice or the establishment of an attorney - client relationship.
Viewing any of these materials is not a substitute for obtaining the advice
of an attorney. You are strongly encouraged to seek the advice of an attorney
before acting upon any legal matter.
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