What should you do when you receive a criminal Summons and Complaint in the mail, a police officer asks to search a car or house you own or lease, or you are asked to agree to be interviewed by law enforcement officers? First, recognize the power imbalance that exists in the situation. Then, level the playing field by politely telling the officer(s) that you will consult with an attorney and get back to them. Conclude the discussion by asking for the officer’s business card. Then, call a good trial lawyer immediately. The law governing the interactions between law enforcement officers and the public is complex and involves several provisions of the U.S. Constitution and State statutes.
The 4th Amendment to the United States Constitution provides that “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.” Under this Amendment, all searches and seizures, whether of property or people, conducted by government officials without a warrant are presumed to be unconstitutional if the search or seizure was conducted in an area where a person has a reasonable expectation of privacy. Katz v. U.S. (1967). To obtain a warrant, a government official must prove to a Judge or magistrate that “probable cause” exists for a warrant to be issued. However, like so many other areas of the law, the general rule has a myriad of exceptions. This article will outline and discuss the most common warrant exceptions encountered in our practice.
Motor Vehicles: One of the most common warrant exceptions is the motor vehicle exception. Under this exception, a police officer needs only probable cause to search a motor vehicle. A warrant is almost never required. Additionally, pursuant to the Supreme Court’s ruling in California v. Acevedo (1991), police may search any part of a motor vehicle, including the trunk, glove compartment, and all containers within the motor vehicle, if they have probable cause to believe contraband or evidence is in the car or container.
Exigent Circumstances: Another common warrant expectation is what are often referred to as exigent circumstances. These exceptions allow officers to execute searches and seizures without warrants when circumstances arise that would cause a reasonable person to believe that prompt action (such as a search or seizure) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. Whether or not exigent circumstances exist in any given matter is decided on a case by case basis by our courts.
Plain View: The plain view doctrine allows officers to make arrests when they witness arrestable offenses being committed, and make seizures when they find evidence or contraband, without a warrant. The only requirement is that the officer must have observed the offense or contraband from a lawful viewpoint. Law enforcement may fly over an area or use binoculars to enhance their ability to view something without violating the 4th amendment warrant requirement.
Consent: As with most areas of the law, the granting of consent deprives the grantor of many of their legal rights and privileges. In the context of the 4th Amendment, officers can search and seize anyone and anything without a warrant or probable cause when they obtain consent. Officers can request consent to conduct a search or seizure at any time for any reason. Furthermore, the consent given need not be informed and can be properly obtained to search property from individuals other than the actual property owner. Never consent to a search of anything without the advice of your attorney.
Searches Incident to Lawful Arrests: For safety purposes, officers are allowed to initiate warrantless searches of arrestees, and anything within the arrestee’s reach, when conducting lawful arrests. Additionally, officers are permitted to conduct “protective sweeps” of homes and other building where an arrestee is found, upon arrest, if they reasonably believe evidence or co-conspirators will be found.
Inventory Searches: When a person is booked into a jail or prison, the jail or prison personnel are authorized to conduct inventory searches of the new inmate without a warrant. Probable cause is not needed to conduct the search. This exception prevents contraband from entering the prison or jail and protects prison and jail officials from claims of theft as all the inmates’ belongings are documented and stored after the search.
Boarder Searches: When you seek to re-enter the United States after traveling abroad, you are always subject to a search without the requirement of a search warrant or probable cause.
This short article is not intended to be a fully comprehensive discussion of the 4th Amendment and warrant exceptions. Your particular situation may involve unique factors. However, the matters discussed in this article should give you a rudimentary understanding of when law enforcement officials need, and do not need, a warrant. For your safety, it is also important that you do not forcefully obstruct a law enforcement official from executing a search or seizure, even if said search or seizure is unlawful or violates the constitution. If you believe you are being subjected to an unlawful search or seizure, comply with the search or seizure then contact an attorney as soon as possible.
This article is not a substitute for legal advice in the context of a specific case. Caldecott & Forro, P.L.C provides free initial consultations to clients and potential clients on a variety of criminal and civil matters.