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When Is Search and Seizure Lawful?


Your Rights Under the Fourth Amendment: What is Search and Seizure?

A citizen’s rights under the Fourth Amendment allow him or her protection from police officers and other law enforcement entities conducting unlawful searches and seizures. In other words, citizens are protected by law from having their home, business, or vehicle examined by law enforcement in an effort to find evidence of a crime without probable cause. Unreasonable search of person and property is an instance in which there is no valid legal cause for the search, and it is often the basis of unlawful arrests.

When is Search and Seizure Legal?

Essentially, the purpose of the Fouth Amendment is to ensure that citizens have some degree of privacy from the government, but that doesn’t mean that law enforcement officials are never allowed to search your person or property.

Search and seizure may be lawful without a warrant in a few exigent circumstances. These exceptions include circumstances in which a reasonable person might believe that prompt action was necessary to prevent:

  • Physical harm to law enforcement or any other person
  • The escape of the suspect
  • The destruction of relevant evidence
  • Any other consequence of the improper frustration of law enforcement efforts

That may seem fairly straightforward, but your rights to privacy are not necessarily so cut and dry. For example, an officer or some other government worker is barred from conducting a search of your personal property, but a non-government official, such as your employer, can still search or infringe on your privacy, or a “legitimate expectation of privacy.” That means that the party intending to do a search on you has reason to believe that you or your possessions must be searched. That is when the government does have the right to carry out the search.

Related reading: What is Probable Cause and Why is it Important?

Are There Any Other Exceptions to the Fourth Amendment?

Yes. Besides the exigent circumstances listed above, Fourth Amendment warrant exceptions to search or seizure also include, but are not limited to:

  • Items in plain view - as long as the officer has a right to be there, he or she can seize illegal items in plain view (such as drug paraphernalia on a car’s passenger seat).
  • Search after a lawful arrest is made - law enforcement can search a person that they have arrested and the area within that person’s “immediate control”.
  • Stop-and-frisk - an officer may conduct a brief patdown search of a person if they have reasonable suspicion of a crime.
  • Probation and parole searches - people on any form of supervised release can legally be subjected to warrantless searches.
  • Searches of found or abandoned property - police do not need a warrant to search either type of property.

Are Warrants Mandatory for Search and Seizure?

If the search is being initiated by a law enforcement official, then they will most certainly need a warrant. First, the officer will bring the case before a judicial review member. That judicial member will then decide whether or not the claims made by the officer have merit, or “probable cause”.

Warrants will usually contain the following information:

  • Reasons why the search is necessary
  • An officer affidavit or sworn oath that there is probable cause
  • Identification of the person, location, and what possessions need to be searched

The judicial review can make the decision to approve or deny the issuance of the warrant. By issuing a warrant, they give law enforcement permission to carry out the search and seize any specific items in connection with the suspected crime. Denials are often due to weak arguments for probable cause.

The crucial element you must be aware of in this situation is this: even if, for whatever reason, a warrant is later found to be invalid, any evidence recovered in the search cannot be used against the person being accused of a crime. This is known as the “exclusionary rule.”

Related reading: Can Police Search My Car Without a Warrant?

What You Must Understand About Consent to Search

Let’s say, for example, an officer pulls someone over and asks to search their vehicle. They must have probable cause to search the car; he or she may claim, for example, that they detect the scent of marijuana in the car. Officers can even reason that the driver simply looks suspicious. There is little time for the officer to obtain a warrant, and thus they feel compelled to act quickly on any inkling of suspicion. They will proceed by asking the driver if they can search the vehicle, or masking the request by making it sound like they are telling the driver that they are going to conduct a search.

Be warned: If you allow the officer to search your vehicle, your home, and other possessions, you have given your “consent” to the search. Officers have absolutely no obligation to tell you that you do not have to submit to the search, especially if the officer has not obtained a warrant. By consenting, you also give up the right to argue that the search was done unlawfully.

Questions About Your Fourth Amendment Rights?

It is important that you understand all of your rights in greater detail under the Fourth Amendment, especially with regards to illegal search and seizure procedures. If you have been accused of a crime and feel your rights have been violated, be sure to contact a criminal defense attorney as soon as possible.

The Hammer Law Firm, LLC can provide you with the legal insight you need. If you’re in the St. Louis area, contact us at any time to request a confidential case evaluation.

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