Although individuals within the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal law enforcement officers are permitted, where justified, to search your premises, car, or various other assets in order to look for and seize illegal items, stolen goods or evidence of a criminal offense. What rules must law enforcement follow when engaging in searches and seizures? What can they do in upholding the laws, and what can’t they do?
What police officers May Do:
- Under the Fourth Amendment to the United States Constitution, law enforcement officials may engage in "reasonable" searches and seizures.
- To establish that a search is "reasonable," the authorities need to generally demonstrate 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 criminal offense. This is often designated probable cause.
- In a few situations, police officers must first make this showing to a judge who issues a search warrant. In the majority of special circumstances, however, law enforcement may be able to conduct a search without a warrant. In fact, virtually all searches are "warrantless."
- Police may search and seize items or evidence when there isn’t any "legitimate expectation of privacy." In various other words, in the event you did not have a privacy interest in the items or evidence, the authorities can take them and, in effect, no "search" has transpired.
Note: In deciding whether or not there was a "legitimate expectation of privacy," a court will take into consideration two matters:
- 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 had stolen from a pawn shop. You leave the rifle laying on the hood of your vehicle when you get home. You do not have a "legitimate expectation of privacy" with regard to items you leave on the hood of your automobile, and the authorities may take the weapon. No search has happened.
- Police may use first-hand info, or tips from an informant to justify the need to search your property. If an informant’s info is utilized, police officers need to establish that the information is reliable under the circumstances.
- Once a warrant is obtained, police officers may enter onto the specified area of the property and search for the items listed on the warrant.
- Police could very well extend the search beyond the specified area of the property or include some other items in the search beyond those specified or listed in the warrant if it is required 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, primarily based upon their preliminary search of the specified area, they believe may be in a different location on the property.
Example: Law enforcement have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your property to go down to the basement, they see a cache of weapons sitting on your kitchen table. Some may take the guns to guarantee their safety while searching your basement.
- Police may search your property without the need of a warrant in the event you consent to the search. Consent needs to be freely and voluntarily given, and you can never be coerced or tricked into giving it.
- Police may search your person and the immediate surroundings without any a warrant when they are placing you under criminal 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 accomplish this, the police must have a reasonable belief that an accomplice may be around.
Example: Law enforcement arrest you in your living room on criminal charges of murder. They can open the door of your coat closet to make certain that no one else is hiding there, but may not open your medicine cabinet because an accomplice couldn’t hide there.
- When you are being taken to jail, police may perform an "inventory search" of items you have with you without the need of a warrant. This search may include your vehicle if it is being held by the authorities in order to make a list of all items inside.
- Police may search without the need of a warrant if they reasonably fear for their safety or for the public’s safety.
Example: If the authorities drive past your home on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they can search your garage without a warrant.
- If it’s required to prevent the imminent destruction of evidence, police officers may search without any a warrant.
Example: If the authorities see you trying to burn a stack of cash that you stole from a bank, they can perform a search without a warrant to stop you from further destroying the money.
- Perform a search, without the need of a warrant, when they are in "hot pursuit" of a suspect who enters a private dwelling or area following fleeing the scene of a crime.
Example: If law enforcement are chasing you from the scene of a murder, and you run into your apartment in an effort to get away from them, they could follow you into the apartment and search the area without the need of a warrant.
- Police may perform a pat-down of your outer clothing, in what is designated a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a firearm and they fear for their safety.
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What police officers May NOT Do:
- The law enforcement officials may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
- If evidence was attained via an unreasonable or illegal search, the police may not use it against you in a trial. This is designated the "exclusionary rule."
- The law enforcement officials may not use evidence resulting from an illegal search to obtain some other evidence.
- The police may not submit an affidavit in support of obtaining a search warrant if they didn’t have a reasonable belief in the truth of the statements in the affidavit.
- Unless there is a reasonable suspicion that it contains evidence, unlawful items, or stolen goods, law enforcement may not search your vehicle. If your vehicle has been seized by the police, however, they can search it.
- Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. Should they have a reasonable suspicion, they may pat down your outer clothing if they have concerns that you might be concealing a weapon.
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Courts often need to determine case-by-case whether or not the circumstances in which law enforcement searched without a warrant had been legal. Thus, any time a search has already occurred and you aren’t sure of its legality, speak to the Top Austin Criminal Defense Attorney as soon as possible. And if the search has not yet been conducted, make sure that you understand your rights in advance.