Your Rights Against Unreasonable Searches by the Police

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 How Am I Protected?

The Constitution of the United States of America’s Fourth Amendment shields us against unreasonable searches and seizures. However, this security is only against searches and seizures performed by government officials, including the police.

A seizure is the arrest or imprisonment of a person by the government or police. Frequently, courts will group unreasonable searches and seizures as one, but an unreasonable search can transpire without anyone being jailed.

When the Fourth Amendment Doesn’t Cover You?

The Fourth Amendment applies to a search only if an individual has a “legitimate expectation of privacy” in the location or item searched. If not, the amendment offers no defense because there are, by characterization, no privacy problems.

What is a Legitimate Expectation of Privacy?

Courts typically use a two-part examination (created by the U.S. Supreme Court) to decide whether, at the time of the search, a defendant had a legitimate expectation of privacy in the location or items searched:

  • Did the individual anticipate some degree of privacy?
  • Is the individual’s expectation objectively appropriate—that is, one that society is willing to acknowledge?

For instance, a person who uses a public bathroom expects not to be spied upon. The individual expects privacy. Most individuals—including judges—would assume that expectation to be objectively fair. Accordingly, installing a secret video camera by the police in a public bathroom would be deemed a “search.” It would be subject to the Fourth Amendment’s condition of reasonableness.

On the other hand, if an officer halts a vehicle and, when speaking to the motorist, happens to see a weapon on the passenger seat, there’s been no search under the Fourth Amendment. That’s because, even if the motorist somehow believed the passenger seat to be a private location, society isn’t inclined to extend privacy protections to that particular place. In other words, there’s no objectively reasonable expectation of privacy concerning the gun because it was in plain view.

An excellent example of how this works comes from a U.S. Supreme Court case. The Court held that a bus passenger had a fair expectation of privacy in an opaque carry-on bag placed in a luggage rack above the passenger’s chair. The Court held that the material probing by the police of the bag’s surface for evidence of contraband formed a search subject to Fourth Amendment limitations.

What Are Private Security Personnel?

Private security personnel have outnumbered police officers in the United States by three to one. As a consequence, whether you’re shopping in a supermarket or a drugstore, working in an office tower, or seeing a companion in a housing project, you might be more likely to be confronted by a security guard than a police officer. The Fourth Amendment doesn’t apply to investigations carried out by non-governmental workers (like private security guards) who aren’t working on the government’s behalf.

For instance, suppose that a shopping mall security guard is functioning on pure suspicion and probes a teenager’s bag. Inside the bag, the guard finds a baggie containing an illicit narcotic. The guard can confine the teenager, call the police, and turn the dope over to a police officer. The narcotic is permissible in evidence because the search was performed by a private security guard acting independently rather than at the officer’s directive.

What is a Search?

A search is an examination or physical invasion of a person’s reasonable expectation of privacy. Pat-downs and security efforts like metal detectors and airport scanners can search an individual. Typically, when we think of a search, we think of skimming through a person’s property (like a house or automobile) to uncover evidence. You should comprehend that the word “search” is vast. It can also be a phone tap, access to computers, or even observation of a house or GPS locator.

What is “Reasonable?”

When a person has a reasonable expectation of privacy, that expectation is personal. An individual expects this area, or this action, to be private. Generally, this expectation needs to be reinforced by what the public acknowledges as private.

For example, suppose Jamie is in a crowded cafe and steps into a private room to make a phone call. In that case, there is a reasonable expectation of privacy. However, there is no privacy expectation if Jamie answers her cell phone at the table and talks loud enough for people around to hear. Similarly, suppose Jamie is in a private room but still talking loud enough for others to hear. In that case, Jamie’s expectation of privacy is unreasonable outside the room.

A person’s privacy depends on two things:

  • The person’s behavior – Jamie talking loudly on the phone; and
  • Social point of view – Jamie stepped away from others to make a phone call.

What is an Unreasonable Search?

An unreasonable search happens when law enforcement searches with no warrant and no probable cause. Probable cause exists when it is more likely than not that proof of a crime can be found in the place being searched.

A search warrant is administered by a judge. A search warrant gives police authorization to search for distinct evidence. Searches without an issued warrant are unreasonable under the Fourth Amendment. Any evidence found during these searches will most likely not be used against a defendant in court.

There are a few exceptions that allow officers to search without a warrant. They are:

  • When a person consents, willingly and freely, to their property being searched;
  • If the evidence is in plain sight of the officer or public;
  • If police are tracking, or in “hot pursuit,” of a person;
  • When a person is arrested, officers may search their body and near surroundings (this is limited to the search of weapons);
  • Cars during a traffic stop when there is a reasonable belief that evidence or illegal items are present; and
  • Police do not need a warrant if they fear evidence being destroyed or people being injured immediately.

Think about this: An officer believes Pam is selling narcotics. The officer enters Pam’s home without a warrant when Pam is not home and searches for the narcotics. This is an unreasonable search, and any evidence found will most likely be excluded in court.

Does a Police Officer Have to Knock Before Entering a Home?

Traditionally, officers obey what is known as the “knock and announce” rule. This rule instructs police to issue warrants to knock and make their presence and intention known. Apart from the exceptions overhead, police may enter the property if no one answers the door after a considerable pause. However, the entry must be necessary and appropriate, such as stopping evidence from being destroyed, not simply because no one is home.

What Are My Rights if Police Conduct an Unreasonable Search?

A breach of the Fourth Amendment on a criminal level would result in nothing more than the potential exclusion of evidence at trial. Keep in mind that some cases may still allow for evidence to be presented, even if an individual right was violated.

Do I Need an Attorney if I Was a Victim of an Unreasonable Search?

Suppose you think your property was unreasonably searched by police without a search warrant, violating your Fourth Amendment right. In that case, you may need to contact a criminal defense attorney. A defense lawyer will help you defend the charges brought against you and seek suppression of evidence you feel was illegally acquired.

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