Under the 4th Amendment, the Constitution states that an individual is to be free from unreasonable searches and seizures in their homes and on their persons. The reason this right has been extended through the Constitution is due to the fact that a person has a reasonable expectation of privacy in these locations. However, does the 4th Amendment protect individuals from searches by police when the police have a search warrant?
Requirements to Obtain a Valid Search Warrant
A search warrant is a legal document which has been signed by a judge that authorizes police officers to search for specific things at a specific place and time.
To be a valid search warrant,
- The warrant must have been filled out honestly and intentionally by a law enforcement officer;
- It must be based on good information and show probable cause to search;
- It must be signed by an unbiased judge;
- It must state specifically what law enforcement will try to seize and where they intend to search for it.
By obtaining a search warrant, police officers have been given permission to disregard an individual’s reasonable expectation of privacy due to the possibility of evidence of a crime being found.
When police officers execute a search warrant, they are allowed to seize any evidence that they find while conducting the search, even if this evidence might not have been included in the original search warrant.
Requirements to Validly Execute a Search Warrant
After police have obtained a search warrant from a judge or magistrate, they are typically given a window of time in which the warrant is considered to be valid to execute the warrant. Generally, if police officers wait too long, any searches and seizures conducted could be thrown out as illegal.
Behavior While Executing A Search Warrant
Generally, police officers are required to conduct themselves in a reasonable manner when executing a search warrant. This means that officers should give you the ability to cooperate and participate rather then knocking down your door. As such, police officers must typically:
- Knock and announce their present prior to entering (allows the occupant to cooperate and avoid breaking down of doors/windows);
- Present the search warrant to the occupants;
- Follow basic rules of courtesy in interacting with the occupants; and
- Not cause undue harm or damage to the property;
Under the 4th Amendment, the Constitution of the United States requires that police officers have probable cause in order to arrest an individual. As such, probable cause is the legal standard that gives police authority in arresting an individual, searching a person or property, or receiving a warrant for arrest.
What is the Knock & Announce Rule?
Under the 4th Amendment, the Constitution guarantees that an individual is to be free from unreasonable searches and seizures in their homes. This is due to the fact that a person has a reasonable expectation of privacy from government intrusion in their home.
Since the 4th Amendment protects individuals from unreasonable searches in their homes, police officers are generally required to knock and announce their presence before entering a home for any purpose. By requiring police officers to do this, courts have recognized that occupants should be given notice and allowed to collect themselves prior to entrance by police officers. However, like almost every rule, there are several important exceptions.
Exceptions to the Knock & Announce Rule: Announcing
Although there is not a steadfast rule requiring a certain statement to be shouted by police officers when announcing their presence, police officers generally shout something that identifies that they are police and the purpose of their visit. However, since there isn’t a certain rule, police don’t have to meet any specific requirement in order to properly announce their presence. Additionally, although the police officers are announcing themselves in order to give the occupant notice, just because an occupant does not hear the police does not mean that the police did not properly announce their presence.
Exceptions to the Knock & Announce Rule: Timing
Another important part of the knock and announce rule is the timing between the knock and announce and the subsequent forcible entry. Although courts have stated that police officers are required to wait a reasonable amount of time before forcibly entering a person’s house, these courts have not given an exact amount of time required either. Because of this, police officers just have to show that under the circumstances, they were justified in the amount of time that they waited before entering.
Exceptions to the Knock & Announce Rule: Violence or Surprise
There are also certain situations where police officers are not required to knock and announce at all. If prior to the entry of the house, police officers know that there is a threat of violence or a possibility that evidence will be destroyed, police officers are not required to knock and announce. This is often seen in situations where police officers are about to raid a house where drugs and guns will be present. The reasoning behind this is that by not having to knock and announce, suspects will not be able to harm the police officers or flush drugs down the toilet.
Consequences of Violations To This Rule
Surprisingly, unlike other violations of the 4th Amendment, violation of the knock and announce rule by police officers does not generally exclude any evidence found. In Hudson v. Michigan, the Supreme Court found that even though police did not properly knock and announce their presence, the police would still have found the evidence with proper procedure. Based off of this reasoning, many other courts have followed the Supreme Court’s lead on admitting evidence found in violation of the knock and announce rule. However, certain state courts have also ruled in the opposite direction. Because of this, there is always a possibility that evidence could be excluded for a violation of the knock and announce rule.
Can the Police Search Without a Warrant?
Under the 4th Amendment, the Constitution guarantees that an individual is to be free from unreasonable searches and seizures in their homes. This is due to the fact that a person has a reasonable expectation of privacy from government intrusion in their home. However, are there circumstances where the police can enter your house without going through the process of obtaining a warrant?
Search Without a Warrant: Exigent Circumstances
Although the 4th Amendment seems to give individuals rights that are set in stone, numerous exceptions have arisen that allow police officers the ability to search without a warrant.
One of these exceptions is the legal concept of exigent circumstances. Under this exception, police officers are allowed to bypass obtaining a search warrant due to the existence of some emergency circumstance that prevents obtaining a warrant.
Generally, there are three examples of exigent circumstances:
- emergency situations,
- the possibility of the destruction of evidence,
- or the hot pursuit of a suspect in a crime.
The reasoning behind this policy is that by allowing police officers to enter a home without a search warrant, the public receives a benefit through the ability to help individuals in danger, the preservation of valuable criminal evidence, or the capture of a dangerous criminal.
Determining The Legitimacy of Exigent Circumstances
Although allowing police to use exigent circumstances to justify warrantless searches is good for the public in general, it does offer the opportunity for abuse on the part of the police. Although there is no definite test, courts have considered the following factors in determining whether exigent circumstances exist:
- Bad faith on the part of the police officers;
- Availability of probable cause and time required to obtain a warrant;
- Reasonable foreseeability of the circumstances; and
- The use of standard or good investigative tactics;
Based off of exigent circumstances, police officers are given greater ability to search your house without first obtaining a warrant. As such, it is important to know your rights if the police show up at your house claiming they are allowed to search your house based off of exigent circumstances. Although it is probably not a smart decision to interfere with a search, it is important to clearly state that you deny consent for the search. Additionally, make sure to ask for identification and any explanation from the police officers for the search. After the search, write down any important details in order to produce a record of what occurred.
Search Without a Warrant: Giving Consent to Search to a Police Officer
The Fourth Amendment of the United States Constitution protects citizens (and non-citizens) from unreasonable search and seizure. Law enforcement must first obtain a warrant based on probable cause before a search can take place. However, there are instances when a search is reasonable without a warrant. Law enforcement can conduct a warrantless search of you and your property if you voluntarily give them consent.
What is Consent?
“Can I search your vehicle?” “Sure.” Is a likely scenario were a person orally agrees to allow law enforcement to search. Any person law enforcement reasonably believes has a right to control the property (roommate, coworker, family member) can give consent.
Consent must be given clearly and voluntarily; not coerced with threats or trickery. However, law enforcement does not need to tell you consent is voluntary. The person whose property is being searched may revoke consent at any time, either orally or through actions.
What Should You Do?
Remember, you do not have to give consent. Officers will try a variety of methods to convince you to consent, but if you do not want your property or person searched say so! If there is a language barrier, ask to speak to an interpreter.
Do not sign anything that you cannot read and fully understand. Remember you can always withdraw your consent once it is given, but you must make this clear to law enforcement. Always be polite and courteous; being rude or combative will get you nowhere.
As mentioned above, consent to search your effects can be given by people close to you. It is important to make clear to the people you share a home or office with that they do not have your permission to consent to a search and that if police ask, they should say no.
4th Amendment Protection of Vehicles
Many people believe that since the 4th Amendment protects their home and individual persons, this protection also extends to their vehicles. Unfortunately, this is not true. In a variety of cases, the Supreme Court has ruled that the 4th Amendment does not provide the same level of protection to a car as it does to a house. The Supreme Court has rationalized this due to the high mobility of a motor vehicle, the use of motor vehicles in public places, and the ease in which a car can be used for criminal behavior. As such, a person, including passengers, cannot expect to have a reasonable expectation of privacy in a car.
Wyoming v. Houghton
In Wyoming v. Houghton, the Supreme Court considered a case concerning the search of passengers of a vehicle. In the case, police officers pulled over a car for a faulty brake light. While talking to the driver, the police officer noticed a syringe in the driver’s shirt pocket. After the driver admitted to using drugs, the police officers searched the passengers and their possessions, finding methamphetamine. At trial, the passengers challenged the legality of the search and attempted to exclude the drugs found. After hearing the legal arguments and theories of the case, the Supreme Court ruled that as long as there is probable cause, police officers are allowed to search passengers and their possessions (backpacks, purses, etc.) as long as the evidence being searched for could fit in those containers.
When entering a car as a passenger, most people don’t even consider whether the driver or any other occupant could be carrying illegal contraband. However, just because a person lacks knowledge of other occupants’ possessions, this does not give a passenger any protection from being searched. Because of this, you should always be aware of the possible consequences for the actions or possessions of another occupant of a car.
Can the Police Search My Cell Phone after an Arrest Without a Warrant?
Under the 4th Amendment, the Constitution states that an individual is to be free from unreasonable searches and seizures in their homes and on their persons. This is primarily due to the fact that a person has a reasonable expectation of privacy in these locations. However, does the 4th Amendment protect an individual’s cell phone from search by a police officer after an arrest?
Unreasonable Searches and Seizures
From the language of the 4th Amendment, it seems that the Constitution prevents the police from conducting warrantless searches. However, this is not always true. In previous cases, the Supreme Court has stated that warrantless searches are allowed under a variety of defined exceptions.
Riley v. California
In Riley v. California, the Supreme Court reviewed whether the police were allowed to search a suspect’s cell phone without a warrant for incriminating information following an arrest. After deliberating on this case, the Supreme Court voted 9-0 that police officers are not allowed to search a cell phone without a warrant. This unequivocal rejection of warrantless searches of cell phones was based on the fact that modern technology allows for such a wealth of information to be gleaned from an individual’s cell phone that the Constitution prevents searches without a warrant.
Are Police Allowed To Use A Thermal Scanner To Search My House From The Outside?
Under the 4th Amendment, the Constitution guarantees that an individual is to be free from unreasonable searches and seizures in their homes. This is due to the fact that a person has a reasonable expectation of privacy from government intrusion in their home. But what happens when the police have access to advanced technology that allows them to “look in” to your house without actually physically entering?
Kyllo v. United States
In Kyllo v. United States, the Supreme Court was faced with the question of whether the use of advanced technology by police to scan a person’s home from the outside violated the 4th Amendment. In this case, the police were investigating a house that they believed was a marijuana grow house. After not being able to find anything through the use of standard police surveillance, the police decided to use an infrared thermal imaging device that allowed them to see the heat signature of the house. The device revealed that the roof of the garage was far warmer than the rest of the house.
From this observation, the police believed that Kyllo was using heat lamps for an indoor marijuana growing operation. After deliberating on the facts and legal theories of the case, the Supreme Court ruled that the search was illegal due its unreasonableness and the lack of a warrant. In the ruling, the Court stated that the use of technology that was not available to the general public violated a person’s reasonable expectation of privacy in their home. As such, the use of it for police purposes was an unreasonable search.
Although the Supreme Court ruled in Kyllo that the search was considered unreasonable, their primary justification was that the thermal imaging technology was unavailable to the public, therefore it violated a person’s reasonable expectation of privacy. However, this case occurred in 2001, when the technology was first becoming available.
Currently, anybody can easily obtain thermal imaging technology through a variety of different stores or sources. Because of this, under the reasoning in Kyllo, since the technology is readily available to the public, a person cannot reasonably expect any privacy in their home from a thermal imaging scan. Based on this line of reasoning, individuals can expect the protection in their homes from unreasonable searches to degrade as more invasive technology comes into the public market.
Are Police Officers Allowed To Use A Terry Search On My House?
Under the 4th Amendment, the Constitution guarantees that an individual is to be free from unreasonable searches and seizures. This is due to the fact that a person has a reasonable expectation of privacy from government intrusion.
But what is considered an unreasonable search? After the Supreme Court ruled that frisks of suspects for weapons by police officers were considered reasonable in Terry v. Ohio, what types of searches are unreasonable? Would a Terry frisk of a person’s car for weapons be considered unreasonable in the eyes of the law?
Maryland v. Buie
In Maryland v. Buie, the Supreme Court was faced with the question of whether police officers were allowed to do a protective sweep of a house for weapons. After an armed robbery of a pizza place, police officers got arrest warrants for two suspects. While attempting to use the arrest warrants on the suspects, the police officers entered the house where the suspects were holed up. While searching, a police officer shouted down into the basement, ordering anyone down there to come out. After one of the suspects came up and surrendered himself, a police officer went down into the basement and observed incriminating evidence. At trial, the suspect argued that the evidence should be excluded because the police officer had no reason to search the basement after his surrender. After considering the legal arguments and theories of the case, the Supreme Court ruled that the search by the police officer was allowed under the Terry doctrine of a protective sweep in order to ensure officer safety from weapons or danger.
Based off of Maryland v. Buie, police officers are allowed to do a limited protective sweep when arresting a suspect in order to ensure officer safety. However, to do this, a police officer must have articulable reasonable suspicion of possible danger or existence of weapons in order to do this protective search. Although this reasonable suspicion requirement may seem like it would limit the ability of police to do a protective sweep, this requirement is pretty easy to fulfill since arrests are inherently dangerous. As such, anything discovered through a protective sweep is generally admissible in court.
If you or someone you know have been charged with a crime based on a search you believe may be invalid, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case and possibly get the evidence excluded. Contact Us at Minick Law, P.C. for a free consultation on your case.
James Minick is a criminal defense attorney in Asheville, NC and is the owner of Minick Law, P.C.