It is essential for citizens to understand illegal search and seizure to protect themselves from improper behavior in dealings with the police. The following article details primary considerations regarding a legal and illegal search and seizure.
The Fourth Amendment to the United States Constitution was written to limit the power of the police to arrest, search people and their property, and seize contraband. From this amendment, citizens have the bedrock of search-and-seizure law. The amendment reads as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In practice, this tells us that the police only have a right to search a home, car, boat, barn, office, documents, or other personal property if they (1) have probable cause to believe a crime was committed and a judge signed a warrant, or (2) the circumstances justified a search without a warrant.
When a court is asked to decide if someone’s Fourth Amendment rights were violated, they generally give a two-part test that was designed by the U.S. Supreme Court. The two parts are:
- Did the person expect privacy?
- Was their expectation of privacy reasonable?
For example, if the party charged with a crime wanted to remove videotape evidence of himself or herself using a public restroom from the court, the lawyers could argue that their client expected privacy in a public bathroom and that it was reasonable to have this expectation. In this case, the police officers that installed the cameras infringed on the defendant’s Fourth Amendment rights.
Some people think the Fourth Amendment could be boiled down simply as, “The police can only search a person if they have a warrant.” However, that is not always the case. There are circumstances where a police officer can search a person without a warrant while still fulfilling the two-step test.
For instance, if a police officer pulled someone over and saw he or she had a gun resting in the passenger seat, and he or she chose to search the car, the police officer would not be conducting an illegal search because seeing a weapon gives probable cause even without a warrant. This scenario also passes the two-step test because, by leaving the gun out on the seat, the driver has shown that he or she does not expect privacy.
If a court finds that an unreasonable search did occur, the evidence found as a result cannot be used to help the prosecution. The “exclusion rule” has been criticized as unfair because it allows criminals to walk away from crimes so long as the police make a mistake. However, the rule is important because it stops officers from conducting illegal searches.