SEARCH AND SEIZURE
The 4th
Disclaimer
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Mr Koepping is NOT an attorney. This discussion
is for the purpose of explaining general
constitutional principles only. Do not rely on this
material in determining what to do if you are
involved in a criminal investigation. You should
contact an attorney if you have a question about
your legal rights in any specific case.
Mr. Koepping will NOT post bail for you so do
NOT call him and ask.
The Fourth Amendment
Full Text
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 Warrants shall not be issued,
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.
The Reasonableness clause
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“The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated” (emphasis added)
Applies to the federal government and state
government
Incorporated by Wolfe v. Colorado in 1949
Expectation of privacy
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A person’s home has a higher expectation of
privacy than one’s garbage at the curb.
Searches
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Generally they require a warrant from a judge, but
there are some exceptions:
Consent: subject agrees to search – police do not
need to inform suspect of right to refuse
Incident to arrest: search of person or areas within
their area of control – including the inside of cars
and any containers within
Exigent circumstances: if the police are in “hot
pursuit” they don’t necessarily need a warrant
Searches (cont.)
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Loss of evidence: if there is a danger of evidence being
destroyed – scraping of fingernails, blood tests
Motor vehicles (have a lesser expectation of privacy): if
probable cause to believe car (including trunk) contains
contraband, evidence, been used to commit a crime, or its
occupants have committed a crime (including a traffic
violation).
Safety: see Terry Stop in a moment.
Plain view: inadvertently seeing contraband or evidence as
part of an otherwise legal search
Levels of police and citizen
encounters
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Approach: Interaction with police that does
not use physical force or show of authority
(asking some questions after approaching a
person or asking to search luggage) requires
no basis for suspicion of a particular
individual
Terry Stop
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Terry Stop: (Terry v. Ohio, 1968) police may stop
and frisk (but not arrest) suspects who show “unusual
conduct” that leads the officer reasonably conclude
that criminal activity may be afoot or that the
suspect is armed
Encounters (cont.)
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Arrests: requires probable cause (as defined
by enough evidence to convince a reasonable
person that the suspect committed a specific
crime) – these can include flight, furtive
movements, in the company of a known
offender at or near time of offense, false
answers to police, or stops for minor traffic
violations
In the schools
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New Jersey v TLO (1985) – school officials don’t
need a warrant to search a student, they only need
“reasonable suspicion” (for example: tips, observing
suspicious activity, history of similar offences)
Vernonia v Acton (1998) – schools can drug test
students who are members of athletic teams
Safford Unified School District v Redding (2009) –
The school’s searches cannot extend to strip
searches