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What is an unreasonable search or seizure?

UPDATED: June 19, 2018

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According to the 4th Amendment of the U.S. Constitution, all persons have a right to be secure in their persons, houses, papers, and effects against unreasonable search and seizure. When a defendant is arrested, the process for determining whether the search or seizure was reasonable will usually include a discussion on (1) whether there was actually a search or seizure, (2) whether the search or seizure was unreasonable, and (3) whether some exception would apply to the unreasonable search or seizure requirement that made the search and seizure lega. Absent some exception, a search or seizure with or without a warrant not based on probable cause is presumed unreasonable. 

Consensual Encounters are Not Search and Seizures

Many people assume that all encounters with the police or law enforcement involve a search or seizure. However, some encounters with law enforcement are “consensual encounters.” The Supreme Court will not apply search and seizure laws to encounters that are deemed consensual. For example, several years ago, law enforcement boarded buses at stations and asked people for permission to search their belongings for contraband. The Supreme Court held that this event was a consensual encounter, not a seizure. 

Other examples of consensual encounters include a police officer asking to talk to someone at a shopping center or at their home. If a defendant consents to the encounter, then the courts will usually approve any subsequent actions which result in the discovery of evidence. What is considered consensual will depend on the circumstances surrounding the exchange between the person and the police. If an officer states or indicates through actions that a defendant cannot leave or abandon the conversation, then the encounter is not consensual. Wearing a gun is not be enough. However, wearing a gun combined with an assertion of authority could turn a consensual encounter into a seizure. 

Proving an Unreasonable Search and Seizure

Once a defendant demonstrates that they were subject to a nonconsensual search or seizure, a court must then decide whether or not the search or seizure was reasonable. What is considered reasonable generally depends on the surrounding circumstances. However, the Supreme Court has outlined general guidelines for different types of privacy interests which include a person’s home, a person’s body, and a person’s car. 

Each of these privacy interests, home, person, and automobile, falls under the Fourth Amendment, but different interests are governed by separate standards of reasonableness. A person has a very high expectation of privacy in their home, while the level of privacy a person should reasonably expect in their car is less. For example, the odor of marijuana coming from inside a vehicle will generally justify the warrantless search and seizure of an automobile, but the same odor coming from a home, without more, will not justify a warrantless search. Instead, law enforcement must obtain a warrant. Homes tend to get more protection than automobiles because they are a person’s domain. Everyone has a reasonable expectation of privacy in their own home. Absent some emergency situation or consent, law enforcement must obtain a warrant based on probable cause to enter someone’s home.

Understanding Probable Cause and Search Warrants

Probable cause is usually recorded in the form of an affidavit. The affidavit sets forth facts and details that would lead a judge to believe that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Essentially, the officer must present some proof to the magistrate or judge that an offense has been committed and that it’s reasonable to believe that evidence of that crime will be found at the location to be searched.

A search warrant must describe the place to be searched, the address or location, the basis of the search, and what items the officer may look for. The search warrant is a procedural safeguard for a person’s privacy in their home. If the affidavit in support of a warrant is defective because it fails to establish probable cause, then the subsequent search can be declared unreasonable. 

Automobiles and Exigent Circumstances

Automobiles get far less protection because they are mobile, under a theory called exigent circumstances. Essentially, law enforcement is given more latitude because cars are on public roadways and are subject to being moved much more easily. Most automobile encounters begin with a traffic stop. A traffic stop is usually called an investigative detention. Only reasonable suspicion is required to seize a vehicle for a traffic violation. This means that the officer does not have to know that a traffic offense has actually occurred, but rather has a good basis for believing that a violation has occurred. 

For example, if a defendant was traveling with no license plate on the rear bumper area, but instead had temporary plates displayed behind heavily tinted windows, they technically are displaying a rear license plate. However, if the officer missed the temporary tags because of the heavy tinting, then the stop would still be a valid detention because the officer has a suspicion that there was a traffic violation based on reasonable facts. Once the vehicle is stopped, an officer’s  search of the vehicle will be considered reasonable if he can articulate facts which demonstrate probable cause that an offense has been or is about to be committed. 

Under the exigent circumstances exception, the officer is not required to obtain a warrant. Factors to support probable cause can be developed by anything that the officer sees in plain view, anything that he hears from the defendant or any passengers, or anything that he smells near the vehicle. Plain view means anything the officer can see through the window or a car door, if either has been opened by a defendant or a passenger. For example, if a passenger opens a car door and the officer observes a small baggie of methamphetamine on the floor board, then the officer has probable cause to search the vehicle for other contraband. 

Pat Downs

Ironically, the reasonableness of searches involving a person’s body has been greeted by the Supreme Court with mixed emotions. Terry v. Ohio was the landmark case which set out the rules for how and when an officer’s physical pat down of a person is reasonable. In order to conduct a limited, outside of the clothing pat down, an officer must first be able to articulate factors that he reasonably believed that the person was armed or dangerous. As with automobiles, reasonable belief carries a relatively low threshold and does not require the production of a warrant. This lower threshold for reasonableness is somewhat justified by the limits of the Terry Stop

An officer must restrict their pat down to the outer part of the clothing. They cannot dive into pockets unless they can plainly feel contraband or receive consent from the person. If they feel contraband, the officer may search a person’s pockets without a warrant. For example, if during a pat down the officer feels a long smooth object that is consistent with the feel of crack pipe, he may reach into the pocket to retrieve what he reasonably believes is contraband, even if it’s later determined that it was not actually a crack pipe.

Several courts have also upheld implied consent laws to justify even greater intrusions involving a person’s body. For example, many states now require mandatory blood draws for certain DWI arrests. A defendant’s blood can be forcefully drawn without a warrant under these statutes. Even without a warrant, these statutes have been upheld under the idea that it is reasonable to believe that a defendant consented to the draw when he drove on the public roadways and agreed to the terms of their usage. The degree of reasonableness to search a person’s body will usually turn on two things: (1) the location and (2) the circumstances. The more public the location (such as a roadway), the less protection they will be offered. The more private the location (like a home) will garner more protection for a person’s body.

Exceptions to Fourth Amendment Protections

Even if a search or seizure is deemed unreasonable because it was not based on probable cause, the Supreme Court and state courts have developed several exceptions to Fourth Amendment protections. One is the good faith exception. This essentially involves one agency relying in good faith on information from another agency. For example, if a defendant is arrested on a warrant from another county and the officer finds cocaine in his pocket, but it is later determined that the warrant had actually been withdrawn in the other county, then the search and seizure will still be upheld because there was no misconduct on the part of the arresting officer. He relied, in good faith, on the information from an agency in another county. 

All courts will recognize consent as an exception to invalid search and seizures. For example, if an officer believes that he has probable cause to search a vehicle at the end of a traffic stop, but instead asks the driver if he can search, then the search will be upheld even if the officer’s continued detention of the driver was not properly based on probable cause—because the driver consented anyway. 

Although not an exception per se, another bar to Fourth Amendment protection is standing. Standing refers to a person’s right to claim the protection of the Fourth Amendment. If a defendant knew that the police were watching his house and he somehow convinced his neighbor to hide a stash of marijuana at their residence, the defendant would have standing to complain about a search of his own home. However, the same defendant would not have the right to complain about a search of his neighbor’s house because he was not an owner or extended guest of the home. 

The rules regarding search and seizure are constantly being challenged in state and federal courts. Some states actually provide more protection under state laws or state constitutions. One area involves private search and seizures. Most search and seizure discussions will only focus on the reasonableness of actions by law enforcement. If the action was by a private security guard, many states will not apply Fourth Amendment protection because the Constutition protects people from the government and a security guard is not a government official. However, some states have extended protection to include the right of a person to be free from any unreasonable search and seizures, regardless of who conducted the search. 

The Exclusionary Rule

If a search is deemed unreasonable, then the evidence obtained as a result of the search will be excluded from trial. This is called the exclusionary rule. Any subsequent evidence obtained as a result of the first illegal search will also be excluded pursuant to the fruit of the poisonous tree rule. Law enforcement’s use of illegally seized evidence taints any other evidence found as a result of that evidence.  

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