Was My Search & Seizure Legal? (Part 1)

Have you ever been approached by Law Enforcement and asked to consent to a search of yourself or your vehicle? Have you ever been at your home or a friend’s home when Law Enforcement knocks on the door demanding entry? You have fundamental rights when law enforcement seeks to invade your privacy by conducting a search of your person and property.

The Fourth Amendment to the U.S. Constitution restricts the power of the police to make arrest, search people and their property, and seize objects and contraband such as illegal drugs or weapons. Specifically the Forth Amendment to the U.S. Constitution states:

“The right of the 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 persons or things to be seized.”

The Fourth Amendment only applies to situations in which a person has a reasonable expectation of privacy. For example if you are carrying a gun in your waist band and the handle of the gun is protruding form your pants, it is more likely than not that a court will find there was no reasonable expectation of privacy since the gun was in plain view. However if there is a weapon locked in the glove compartment of your vehicle, there is a strong argument that a person had a reasonable expectation of privacy.

Over the next few weeks I will be covering the law of search and seizures and addressing frequently asked questions.

Can Law Enforcement search me without a warrant?

Yes. There are several situations that allow police to conduct a search without a warrant. Knowledge of these “warrant exceptions” will make you more familiar with what is appropriate and what is a violation of your rights.

Consent—Voluntary consent makes everything good. If the police ask your permission to search your home, vehicle, purse, or other property, and you consent, then the search becomes consensual and the officer no longer needs a warrant. It is never wise to consent to a search of yourself or property without first speaking with an attorney.

Search incident to a lawful arrest—When a person is placed under lawful arrest, the police may conduct a search of the person and the immediate surroundings for weapons or contraband. The public safety reasoning for this search is to ensure that that there are no weapons around that might be used to harm the officer or citizens and to ensure that contraband is not left around or brought into the jail.

Exigent circumstances—Law Enforcement can legally search you without a warrant if the need to do so immediately due to an emergency situation where life or safety of others is at risk. An example of this would be if you and your spouse are having a fight in your home and your spouse calls 911 and states that you are trying to kill her, then the police do not need to waste time getting a warrant and will be justified in entering the home without a warrant due to fear of harm to the spouse.

The Automobile Exception—Many times law enforcement can seize and search an automobile based upon the exigency present due to the mobility of a vehicle before a search warrant can be secured. This type of search is still restricted by the Fourth Amendment and Law Enforcement must have an articulable suspicion that you are engaged in criminal activity before a search is justified.

Hot Pursuit or Fleeing—The Supreme Court has routinely held that if a person takes flight (runs off) when he sees the police approaching, then the police may reasonably suspect criminal activity is afoot. This covers the base of reasonable suspicion necessary to conduct a search and since the person is running there is also exigent circumstances that will bypass the need for a warrant. The police will be permitted to chase you down and search you. If the person running or driving away is in “hot pursuit” by law enforcement, then the officers will be justified in entering any private dwellings to search for criminals who are fleeing.

Please stay tuned for my future segment on search and seizures.