Law Enforcement, Searches, Seizures, and the Right to Privacy

In 1789 James Madison proposed amendments to the U.S. Constitution before the United States Congress. These first ten amendments became law in 1791 when they were ratified by ¾ votes. They are now known as the Bill of Rights. These basic freedoms apply to all individuals in the United States regardless of citizenship. One of the key components of the Bill of Rights is the Fourth Amendment which provides the freedom from unreasonable searches and seizures by the government. An instrument we have in the United States to ensure our basic Fourth Amendment right is known as the exclusionary rule.

According to the exclusionary rule, evidence obtained by officers during an illegal search can be inadmissible in court. Therefore, a prosecutor would not be able to present this evidence at trial. This rule maintains the integrity of the courts by keeping "tainted" evidence from the courtroom and preventing the courts from participating in any illegal behavior conducted by law enforcement. The main focus of the exclusionary rule is to prevent or deter officers from conducting unlawful searches and seizures.

An unlawful search or seizure can be many things but don't be fooled, the Fourth Amendment does not give an absolute right to privacy and it does not prohibit all searches. The Fourth Amendment is not violated unless someone's legitimate expectation of privacy is infringed upon by the government. For instance, you can be legally detained if an officer has reasonable suspicion of criminal activity. If a woman around the block said a man with a knife snatched her purse and you meet her stated physical description you can be legally detained.

A detention must be temporary and not last longer than is necessary to resolve the reason for the stop. Officers may take investigative actions to determine your possible participation in this crime. Actions could include bringing the victim for identification or questioning you about your identity and conduct. For the most part, no searches are permitted during a legal detention. However, there is one major exception to a search during a detention.

An officer may conduct a legal search called a pat-down or frisk while detaining an individual if there is reasonable suspicion that the person could be carrying a concealed weapon. In our scenario the woman stated the man had a knife which would give our officer the justification in conducting a limited search for a weapon without a warrant. A pat-down or frisk search is allowed to prevent an unexpected assault on any officer. The scope of a pat-down is limited to searching for possible weapons of the outer clothing. It is not a search for contraband or other evidence. Once an officer conducting a pat-down realizes an object is not a weapon, the officer cannot further manipulate the object.

Any additional feeling, grabbing, or manipulating of the item is outside the scope of a pat-down and may be considered an illegal search. For example, if the officer comes across a mint container and a cigarette pack during the pat-down he cannot pull them out of pockets and open them. If these objects were taken out of pockets, opened and drugs were found then the drugs could be considered inadmissible and thrown out as evidence. However, if an item is discovered that is immediately recognized as contraband by plain sight, smell, or touch then the officer may seize it. A heroin-filled balloon felt during a pat-down can definitely be seized. An officer is entitled to seize and open a container if it is reasonable to believe that it may contain a weapon, be used as a weapon or if their knowledge and experience provide probable cause to believe that it contains contraband. A frisk search should not be confused with a legal warrantless search.

A consent search would be considered a legal warrantless search. The officer can ask if he can search for drugs and if the answer is "yes" then permission is given to search. If he finds drugs or other contraband during this search, it can be used as evidence. However, a person can always refuse a request to be searched. You can even change your mind in the middle of a consent search by saying "I don't want you to search anything anymore" and the search must stop. Sometimes an officer may inadvertently undermine the voluntariness of a consent search by verbally demanding consent rather than requesting it or by drawing their weapon while making a request. This show of force or intimidating demeanor could make the consent search illegal. A consent search given for a home or car is where most people maintain an issue with the law.

Imagine a father who has three teenage boys that borrower and use his car often. The father is driving by himself along the road when he gets pulled over by local police for speeding. A dispatch goes out detailing a robbery in the area with a suspect fleeing the scene who had a car the same make, model and color. However the description of the suspect does not match so the officer asks if he can search the vehicle. At this point, it would serve best to say "No, I am not comfortable with a search of my car." If the father happened to say "yes" and drugs were found, then he could be arrested even though the drugs are not his. Searches for vehicles are treated differently than searches of a home.

For a vehicle, an officer only needs to believe he has enough probable cause evidence to obtain a search warrant from a judge to be able to search. An officer does not need to obtain the actual warrant to search a vehicle. To search a house an officer would need to present evidence to a judge and obtain a warrant if he did not have lawful access. If an officer sees drug paraphernalia in the back seat of a vehicle in his plain view during a routine traffic stop, he has probable cause to search the rest of the vehicle. The scope of a vehicle search depends on the item the officer is looking for. Officers may search any part of a vehicle, or anything inside the vehicle, as long as what they are searching for might reasonable be located there. Any illegal item in plain view can be used as probable cause evidence.

If an item can be seen in plain view and can be associated with a crime or criminal behavior officers do not have to blind themselves because they do not have a warrant. There is no reasonable expectation of privacy for items left in plain view and the owner or possessor has no Forth Amendment protection. This plain view doctrine extends to what an officer can smell, hear, or touch as well. Plain view even extends to what police dogs can smell or hear. However, in order for an illegal item in plain view to be seized the officer must have probable cause, a lawful right to be in the location, and lawful access.

An item in plain view seen from a lawful location does not mean an officer can legally enter private property without a warrant to seize it, even if the item is obvious contraband or evidence of a crime. The officer must have lawful access which can be obtained by having consent to enter or be in the home or by having exigent circumstances, such as a reasonable belief that the evidence will be destroyed if entry is delayed to obtain a warrant. An officer also has lawful access if he entered to conduct a parole or probation search. A warrant can always be granted by a judge based on evidence of a crime and probable cause.

Remember, a search warrant is not always needed to make a search legal. Blood samples, gathered in a medically approved manner, are considered minimally intrusive and a warrant is not always needed. When blood is taken without a warrant or consent officers must have probable cause and exigent circumstances must exist. Exigent circumstances exist because of the evanescent nature of blood samples. If these conditions are met, blood may be taken if a suspect is unconscious or where officers must apply reasonable force. By obtaining a driver's license in California a person gives implied consent for chemical testing which include blood, breath, or urine without a warrant. Other searches and seizures where a warrant may not be necessary are when fingerprints, handwriting, and voice samples are needed.

Individuals in the United States are protected against unreasonable searches and seizures by the Fourth Amendment. This basic freedom provided by our founding fathers in the Bill of Rights is sacred. So much that American society has put systems in place to ensure this right, such as the exclusionary rule. However, the Fourth Amendment does not prohibit all searches and does not provide an absolute right to privacy. American society has also defined what is considered a reasonable search and seizure. Depending on the circumstances surrounding the situation a search and/or seizure can be considered legal or illegal. Any illegal items obtained during an illegal search by an officer may not be used in trial as evidence.

Lawrence Hemsley was licensed as a Bail Agent in 1999 and is the owner of Max Cherry Bail Bonds located in California. He holds a BA in Psychology with an emphasis in Criminal Justice and a Master's Degree in Business Administration.