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Search and Seizure and the Fourth Amendment Of The United States Constitution !

The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses.Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals' Fourth Amendment rights only under limited circumstances, and through specific methods.

What Does the Fourth Amendment Protect?

In the criminal law realm, Fourth Amendment "search and seizure" protections extend to:A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and

Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.

The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

When Does the Fourth Amendment Apply ?

The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:An individual is stopped for police questioning while walking down the street.

An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk.

An individual is arrested.

Police officers enter an individual's house to place him or her under arrest.

Police officers enter an individual's apartment to search for evidence of crime.

Police officers enter a corporation's place of business to search for evidence of crime.

Police officers confiscate an individual's vehicle or personal property and place it under police control.

Potential scenarios implicating the Fourth Amendment, and law enforcement's legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:A valid search warrant;

A valid arrest warrant; or

A belief rising to the level of "probable cause" that an individual has committed a crime.

What if My Fourth Amendment Rights Are Violated?

When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:An arrest is found to violate the Fourth Amendment because it was not supported by probable cause or a valid warrant. Any evidence obtained through that unlawful arrest, such as a confession, will be kept out of the case.

A police search of a home is conducted in violation of the homeowner's Fourth Amendment rights, because no search warrant was issued and no special circumstances justified the search. Any evidence obtained as a result of that search cannot be used against the homeowner in a criminal case.

Searches and Seizures: The Limitations of the Police + Although people 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 allowed, where justified, to search your premises, car, or other property in order to look for and seize illegal items, stolen goods or evidence of a crime. What rules must the police follow when engaging in searches and seizures? What can they do in upholding the laws, and what can't they do?

What the Police MAY Do:Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures.

To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause.

In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless."

Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred.

Note: In deciding whether there was a "legitimate expectation of privacy," a court will consider two 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 stole from a pawn shop. You leave the rifle laying on the hood of your car when you get home. You do not have a "legitimate expectation of privacy" with regard to things you leave on the hood of your car, and the police may take the rifle. No search has occurred.

Police may use first-hand information, 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, the police may enter onto the specified area of the property and search for the items listed on the warrant.

Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in 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 which, 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 house to go down to the basement, they see a cache of guns sitting on the kitchen table. They may take the guns in order to ensure their safety while searching your basement.

Police may search your property without 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 arrest.

If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around. Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there.

When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside.

Police may search without a warrant if they reasonably fear for their safety or for the public's safety.

Example: If the police 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 a warrant.

If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant.

Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money.

Perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.

Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant.

Police may perform a pat-down of your outer clothing, in what is called 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 Police 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 illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule."

The police may not use evidence resulting from an illegal search to find other evidence.

The police 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, illegal items, or stolen goods, the police may not search your vehicle. If your car has been confiscated by the police, however, they may search it.

Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. If they have a reasonable suspicion, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.

Probable Cause + "Probable cause" generally refers to the requirement in criminal law that police have adequate reason to arrest someone, conduct a search, or seize property relating to an alleged crime.

The probable cause requirement comes from the Fourth Amendment of the U.S. Constitution, which states that:

"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 searched."

As seen in those words, in order for a court to issue a warrant -- for someone's arrest, or to search or seize property -- there must be "probable cause."

Police must also have probable cause to arrest without a warrant, and in many cases to search or seize property without a warrant.

Prosecutors must also have probable cause to charge a defendant with a crime.

Warrants and Probable Cause

Typically, to obtain a warrant, an officer will sign an affidavit stating the facts as to why probable cause exists to arrest someone, conduct a search or seize property. Judges issue warrants if they agree that probable cause exists.

There are many instances where warrants are not required to arrest or search, such as arrests for felonies witnessed in public by an officer. Here is more information on when warrants are not required.

If a warrantless arrest occurs, probable cause must still be shown after the fact, and will be required in order to prosecute a defendant.

Probable Cause for Arrest

Probable cause for arrest exists when facts and circumstances within the police officer's knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. Probable cause must come from specific facts and circumstances, rather than simply from the officer's hunch or suspicion.

"Detentions" short of arrest do not require probable cause. Such temporary detentions require only "reasonable suspicion." This includes car stops, pedestrian stops and detention of occupants while officers execute a search warrant. "Reasonable suspicion" means specific facts which would lead a reasonable person to believe criminal activity was at hand and further investigation was required.

Detentions can ripen into arrests, and the point where that happens is not always clear. Often, police state that they are arresting a person, place him/her in physical restraints, or take other action crossing the line into arrest. These police actions may trigger the constitutional requirement of probable cause.

Someone arrested or charged without probable cause may seek redress through a civil lawsuit for false arrest or malicious prosecution.

Probable Cause to Search

Probable cause to search exists when facts and circumstances known to the officer provide the basis for a reasonable person to believe that a crime was committed at the place to be searched, or that evidence of a crime exists at the location.

Search warrants must specify the place to be searched, as well as items to be seized.

There are many instances where a search warrant is not required. Common situations in which police are allowed to search without a warrant include:when they have consent from the person in charge of the premises (although who that person is can be a tricky legal question);when conducting certain searches connected to a lawful arrest; andin emergency situations which threaten public safety or the loss of evidence.

Police also do not need a warrant to search or seize contraband "in plain site" when the officer has a right to be present.

Questions often arise over the extent to which police may search vehicles. Here are some commonly asked questions and answers about vehicle searches.

Probable Cause to Seize Property

Probable cause to seize property exists when facts and circumstances known to the officer would lead a reasonable person to believe that the item is contraband, is stolen, or constitutes evidence of a crime.

When a search warrant is in play, police generally must search only for the items described in the warrant. However, any contraband or evidence of other crimes they come across may, for the most part, be seized as well.

Should evidence prove to have resulted from an illegal search, it becomes subject to the "exclusionary rule" and cannot be used against the defendant in court. After hearing arguments from the prosecuting and defense attorneys, the judge decides whether evidence should be excluded.


Probable cause refers to the amount and quality of information required to arrest someone, to search or seize private property in many cases, or to charge someone with a crime. Probable cause to arrest, search, or seize property exists when facts and circumstances known to the police officer would lead a reasonable person to believe:that the person to be arrested has committed a crime;that the place to be searched was the scene of a crime;that the place to be searched contains evidence of a crime; and/or that property to be seized is contraband, stolen, or constitutes evidence of a crime.

The federal Constitution and the Supreme Court cases interpreting it establish the minimum amount of protection that a state court must provide when it is interpreting a section of the Bill of Rights that has been made applicable to the states via the doctrine of incorporation, including instances when a state court is required to interpret and apply the Fourth Amendment. A state court interpreting the search-and-seizure provisions of its own constitution may provide more protection than is afforded by the federal Constitution but not less. Below is a sampling of cases decided in part based on a state court's interpretation of its own state constitutional provision governing search and seizure. (See Your Own State Laws )

FLORIDA. Florida courts are constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution as interpreted by the United States Supreme Court (see State v. Hernandez, 718 So.2d 833 [Fla. App. 1998]).

GEORGIA. A driver's proceeding through a poorly lit intersection without her headlights on created reasonable suspicion to justify a traffic stop of driver under the state constitution (see State v. Hammang, 549 S.E.2d 440 [Ga. App. 2001]).

IDAHO. The term "exigent circumstances" refers to a catalogue of exceptional or compelling circumstances that allow police to enter, search, seize, and arrest without complying with the warrant requirements of the federal or state constitutions, including unannounced entries to search made pursuant to the state and federal "knock and announce" statutes (see State v. Rauch 586 P.2d 671 [Idaho 1978]).

ILLINOIS. Officers involved in the surveillance of an arranged drug purchase had sufficient probable cause to make an arrest of both the driver and passenger of an unidentified vehicle that was observed during the surveillance (see People v. Ortiz, 823 N.E.2d 1171 [Ill. App. 2005]).

KANSAS. Even though police improperly searched a suspect's pockets and found drugs, these drugs inevitably would have been discovered. Under the inevitable discovery doctrine, the search was permissible. (see State v. Ingram, 113 P.3d 228 [Kan. 2005]).

LOUISIANA. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to warrant requirement of the federal and state constitutions (see State v. Manson, 791 So. 2d 749 [La. App. 2001]).

MICHIGAN. Enhanced search and seizure protection under Michigan's Constitution is available only if the search or seizure occurs inside the curtilage of the house (see Mich. Const. Art. 1, § 11).

MINNESOTA. The purpose of the exclusionary rule based upon the search and seizure provision of the state constitution is to deter police misconduct, and thus there is no compelling reason to apply a more stringent standard when applying the state exclusionary rule than when applying the federal exclusionary rule (see State v. Martin, 595 N.W.2d 214 [Minn. App. 1999]).

NEW JERSEY. Racial profiling involves a claim of unlawful search and seizure in violation of the state's constitution (see State v. Velez, 763 A.2d 290 [N.J. Super. A.D. 2000]).

NEW MEXICO. The state constitution allows a warrantless arrest only upon a showing of exigent circumstances (see American Civil Liberties Union of New Mexico v. City of Albuquerque, 128 N.M. 315, 992 P.2d 866 (N.M. 1999); NM Const. Art. 2, § 10).

NEW YORK. Liquor retailer had no legitimate expectation of privacy in retail customer sales records maintained by liquor wholesalers with whom the retailer had business dealings, and thus, the retailer lacked standing to challenge, as an unreasonable search and seizure in violation of the New York Constitution, the Department of Taxation and Finance's use of wholesalers' sales records to investigate suspected underreporting of sales tax by liquor retailers (see Roebling Liquors Inc. v. Comm'r of Taxation & Finance, 728 N.Y.S.2d 509 [N.Y. App. Div. 2001]).

NORTH CAROLINA. An informant was sufficiently reliable such that his tip could provide probable cause where the informant had more than 14 years of personal dealings with an officer and had led to more than 100 arrests. (see State v. Stanley, 622 S.E.2d 680 [N.C. App. 2005]).

OHIO. An inventory search of a compartment of a lawfully impounded vehicle does not contravene the federal or state constitutions, where the search is administered in good faith and in accordance with reasonable police procedures or established routine (see State v. Mesa, 717 N.E.2d 329 [Ohio 1999]).

SOUTH CAROLINA. A court order violated a defendant's Fourth Amendment rights by compelling a blood sample. However, other evidence supported the defendant's conviction for murder and first-degree burglary, and the court determined that the error was harmless (see State v. Baccus, 2005 WL 3620398 (S.C. 2006).

WASHINGTON. Without judicial participation, a municipal court clerk may not order the issuance of an arrest warrant in the absence of an authorizing statute, court rule, or ordinance (see State v. Walker, 999 P.2d 1296 (Wash. App. 2000).

WISCONSIN. Where police officers act in objectively reasonable reliance upon a facially valid search warrant that has been issued by a detached and neutral magistrate, a good-faith exception to the exclusionary rule applies under the state constitution, provided that the state shows the process used in obtaining the warrant included a significant investigation and review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion or a knowledgeable government attorney (see State v. Eason, 629 N.W.2d 625 [Wisc. 2001]).

Strip Search after an Arrest + A person's constitutional rights don't end once police officers have placed them under arrest and taken them to jail. Because of the special concerns surrounding safety and security in jail facilities, however, corrections officers may intrude on a prisoner's rights more than is allowed in other circumstances as long as the intrusion is related to reasonable objectives.

In many cases, these intrusions involve strip searches and/or body cavity searches of arrestees. These types of inspections are highly invasive, but jails and prisons regularly carry them out in order to prevent smuggling of drugs, weapons or other contraband. These types of searches sometimes even occur when the arrestee has not been charged with a violent crime, and in the absence of factors that would give rise to a suspicion that the arrestee possessed concealed contraband.For example, a person could find themselves arrested over a warrant for a traffic violation and subjected to a strip and/or body cavity search upon arrival at the jailhouse, even though nothing about their case would lead police to believe they had anything dangerous or prohibited on their person.

Unfortunately, the state of the law in regards to strip searches is currently unclear. The Supreme Court has declared that strip searches and body cavity searches in jail or prison can occur when there is a reasonable purpose behind them, but lower courts disagree over whether jails may strip search every prisoner, or whether some level of individualized suspicion is necessary.

The United States Supreme Court first examined the issue of prison strip searches in a case called Bell v. Turner. That case involved strip and body cavity searches that inmates argued violated their Fourth Amendment rights against unreasonable searches.

The Court found that, despite the undeniable invasion of privacy that the searches entailed, the prison in question did not violate the prisoners' constitutional rights because it had reasonable justifications for the searches. The prison argued that the searches prevented the smuggling of contraband that could threaten the safety and stability of the prison, and the Court determined that this reasoning supported the invasive searches.

Since Bell, many federal appeals courts have examined the issue of strip searches and come to contradictory conclusions. Some courts have found that jails and prisons must have a reasonable suspicion that an individual has hidden contraband on his person before conducting a strip search. Other courts have held that no individualized suspicion is required, and that prisons and jails may search all inmates and arrestees as long as the purpose behind the search is reasonable.

The Supreme Court will weigh in on the issue again in the term starting October 2011 when it hears a case involving a man who, similar to the example above, was arrested over an unpaid traffic citation that he had actually paid. Before police discovered this fact, however, two different jails subjected him to strip searches.

He sued, and the case has gone all the way to the Supreme Court. Observers expect the Court to resolve the issue of suspicionless strip searches in its decision.

When is an Arrest a Legal Arrest ? Or A Probable Cause Arrest Is Legal ? + Many times when people are questioned by the police, they don't feel that they are free to walk away from the officer. However, until you've been formally detained (as in a traffic stop) or arrested, the officer can't stop you from simply walking away. However, once the officer prevents you from walking away, an arrest has taken place. Whether the arrest is legal or not depends in large part on whether he or she had "probable cause".

What is Probable Cause?The Fourth Amendment of the U.S. Constitution authorizes police to make an arrest as long as they have "probable cause". The Fourth Amendment 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 idea behind probable cause is to prevent the sort of police states that exist in other countries, where officials can simply round up people they don't like as "undesirables" or "threats" without any justification. This standard is deliberately vague, but over time the interpretation of what constitutes probable cause has become fairly solidified:Probable cause is established through factual evidence, and not just suspicions or hunches.Probable cause can be established through observation alone (sight, smell, sound, etc), and includes observations that create suspicion based on a familiar pattern of criminal activity, such as when an officer sees a car circling around an area repeatedly or when someone is flashing their headlights.Probable cause can be based on information derived from witnesses, victims and informants.Probable cause can be based on police expertise, such as recognition of gang signs, detection of tools appropriate for committing certain crimes, or knowledge of movements and gestures that indicate criminal activity.Probable cause can be based on circumstantial evidence that only indirectly indicates that a crime has occurred, such as a broken window.Who Decides Whether an Officer had Probable Cause?

While probable cause needs to be established before an arrest by the police officer, probable cause can be determined after the fact by a judge. This means that an officer could have in good faith thought he or she had probable cause, but a judge can later determine that there was in fact no probable cause. If this occurs, evidence acquired without probable cause becomes inadmissible in court.

Also, even if it turns out that the police were wrong and a suspect is later acquitted, it doesn't affect the determination of probable cause. Probable cause is extremely important to the police, because even if the suspect is found to be innocent, the finding of probable cause shields the police from lawsuits.

How Much Evidence is Enough to Establish Probable Cause?

There is no set amount of information and no hard rule for what constitutes "enough" information to establish probable cause. The standard is meant to be flexible, and allows judges to balance the rights of the police to conduct investigations and protect the populace in good faith, against the rights of citizens to not be harassed by the police. Judges will often make their decision on whether probable cause existed based on their:Interpretations of what the drafters of the Fourth Amendment meant to protectViews on the police, government interference and defendant's rightsExperience in deciding similar factual situationsExperience with prior cases involving the arresting officer

Scientific and Forensic Evidence + There are many types of evidence that are commonly used at trial. Scientific and forensic types of evidence can be extremely helpful in proving your case, but there are rules and standards that these types of evidence must meet before they can be submitted during a trial.

You may be wondering what on earth scientific evidence could mean in regards to a trial. In general, scientific evidence is based off of knowledge that has been developed by using the scientific method. This means that the basis for the evidence has been hypothesized and tested and is generally accepted within the scientific community. This could mean that the theory on which the scientific evidence is based has been published in scientific journals and has been subjected to peer review within the scientific community.

Generally, many types of forensic evidence are often considered scientific evidence, like DNA matching, fingerprint identification, and hair/fiber evidence. The methods used to develop these types of evidence are generally beyond the scope of knowledge that judges and juries possess and are therefore normally introduced as scientific evidence.

However, this is not to say that scientific evidence cannot be excluded from a courtroom or trial. There are often many steps that must be taken before a piece of scientific evidence can be put forth in a courtroom as factual evidence. In general, a scientific theory must have established itself in the scientific community and become generally accepted as the truth before it will be asserted as evidence at trial.

For example, because it has been around for so long and because it has proven to be reliable, evidence regarding fingerprint matching is generally admissible as forensic evidence in trial. In addition, things like radar and laser speed guns are generally accepted as being a valid method to tell the speed of a car at a given time and can be admitted as evidence. But keep in mind that there will often be new types of scientific evidence that parties will attempt to submit at trial - science that may not have a solid foundation within the scientific community.

If one side of a trial wishes to submit scientific evidence that is not yet generally accepted within the scientific community, it often happens that the court orders a mini-trial to be held in order to determine the validity of the scientific theory on which the evidence is based. As an example, DNA evidence had to go through many mini-trials before it became generally accepted as valid evidence at trail.

In the future, we may see more mini-trials as more types of forensic evidence are introduced in court. As another example, many scientists are currently working on using functional Magnetic Resonance Imaging (fMRI) as a new type of lie detection machine (this works by imaging, in real time, the flow of blood around the brain). If, during a mini-trial, a judge can be convinced that a new, as-of-yet unproven, type of scientific evidence should be introduced at trial, then the judge will allow it to be presented.

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