Search and Seizure

Questions to ask when there has been a search and seizure of property: 

• Was there government conduct involved? The 4^th Amendment only protects you against seizures by the government.  Are the people taking the action publicly paid police, citizens acting at their direction or are they public school officials.  
• Did you have a reasonable expectation of privacy?  To have a 4^th Amendment right, a person must have standing (owned or had a right to possess the place or thing).  
• If government conduct was involved and you have standing (reasonable expectation of privacy), then the next question becomes – did the government have a valid warrant? 
• If the government did not have a valid warrant, did they make a valid warrantless search and seizure? See Exceptions to the Warrant Requirement.  

Reasonable Expectation of Privacy – General Rules to Raise 4^th Amendment Protection:

People do have a reasonable expectation of privacy in their home and the buildings close to their home.  Generally, a warrant is required.  

You do not have a reasonable expectation of privacy in: objects held out to the public, abandoned property, garbage placed on the curb for pickup, open fields or woods.  

You do not have a reasonable expectation of privacy in the areas of private property commonly used by people who come there – a common entranceway (driveway, sidewalk to a door).  

If law enforcement officers are legally on your property, what they see, smell, touch, and hear generally does not fall under the reasonable expectation of privacy.  However, officers may need further justification to actually seize such property, depending on circumstances. 

Generally, the courts have ruled that you have a lesser expectation of privacy in a vehicle than in a home. This is because a car is mobile.  

The Court will look at the totality of the circumstances to determine if there is a reasonable expectation of privacy – ownership of the property seized and the location of the property at the time of the search.   

Is a Valid Warrant Needed

The general rule is that all warrantless searches are unconstitutional unless they fit into one of the recognized exceptions to the warrant requirement.  As you may have guessed, the exceptions to the warrant requirement have now become the rule.  Most of the searches today are warrantless.  This is because the Courts thru the years have promoted this conduct by the government by coming up with new exceptions to the warrant requirement.  

There is pressure on the courts to water down the bill of rights. Justice Douglas in his Dissenting opinion in Terry v. Ohio said: 

 “There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand.  That hydraulic pressure has probably never been greater than it is today.”  “Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime.   The decision to enter it should be made only after a full debate by the people of this country.” 

Terry v. Ohio was written in 1968.  America and the Courts have made their decision.  Today, the Courts and the American people prefer order over freedom.  The Courts will normally give the benefit of the doubt to the government on search and seizure issues since the underlying objective is to maintain order even if that means sacrificing freedom.  The pressure is great.  The thinking goes something like this:  What exception can we come up with to make the search and seizure legal.  However, with that said,  there are still some judges and appeal courts that try to apply what is left of the 4^th Amendment in a strict way because they know that the individual’s rights have been watered down severely.    Most Courts, even today, still require heighted scrutiny of a home search.  

A warrant must be based on probable cause and it must describe with reasonable precision the place to be searched and the items to be seized.  A warrant must be executed without unreasonable delay, usually within 48 hours after it is issued.  The law enforcement officers must give notice of their identity and purpose before entering to execute a warrant.  Law enforcement officers may enter by force only if they believe admittance is being denied or unreasonably delayed or if the life or safety of any person would be endangered by giving notice.    

Nontestimonial Identification Orders:  This is a special type of search warrant requiring the suspect to appear for identification procedures.  This type of search warrant is for very intrusive searches such as body-cavity probes, surgical intrusions, or taking a blood sample.  These search warrants can only be issued by a judge and only a district attorney or assistant district attorney may apply for the order.  

A warrant is needed to search your home and all warrantless searches of homes are presumed unreasonable, unless of course an exception to the warrant requirement applies.  

Exceptions to the Warrant Requirement

Search Incident to Lawful Arrest:  Law enforcement officers may search someone without a warrant after they have been arrested and may search the immediate areas close to the suspect for weapons. If the arrest is unlawful, then any search incident to that arrest is also unlawful.   

Auto Exception:  Law enforcement officers may search a vehicle without a warrant if they have probable cause to believe that the vehicle contains evidence of a crime.  It must be likely that due to exigent circumstances, the vehicle will be unavailable by the time a warrant is obtained.

Plan View:  Law enforcement officers may make a seizure without a warrant if they are lawfully on the premises and inadvertently discover evidence of a crime in plain view and have probable cause to believe the item is evidence of a crime.   

Consent: Law enforcement officers may search without a warrant if they have a voluntary and intelligent consent to do so.  However, not just anyone can give consent, so the relationship of the person with the property and others needs to be considered.  (roommates, spouses, parents-children, landlords-tenants, guests in a home, employers-employees)  

Stop and Frisk:  Law enforcement officers may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity or of involvement in a completed crime.  The officers may then conduct a protective frisk only if they reasonably believe that the person may be armed and presently dangerous.  The reasonable suspicion can come from a bulletin issued by other police officers – personal knowledge of the criminal activity is not required.  The frisk is normally limited to a pat down of the outer clothing.  However, if the person is in a vehicle that has been properly stopped (detained but not arrested), a frisk can be expanded to the passenger compartment of the car, into the areas that a weapon could be hidden, as long as the officers have reasonable belief that the person is dangerous.  

Hot Pursuit, Emergencies:  Law enforcement officers in hot pursuit of a fleeing felon may make a search and seizure without a warrant.