LAW 2  CRIMINAL LAW
SEARCH AND SEIZURE
SEARCHES AND THE RIGHT TO PRIVACY
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Police officers have the right, and the duty, to watch citizens whose actions seem suspicious.
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If they see signs of criminal activity, they need to collect evidence of that activity.
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To do so, they may search areas for evidence and clues, and they may seize any evidence they find.
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If they have good reason to believe that certain people are responsible for a crime, they may also seize those
people—in other words, arrest them.

Naturally, the police could do their job much more efficiently if they had unlimited powers to search and seize.

They would be better able to catch criminals if they could eavesdrop on phone conversations, break into
homes without warning, or arrest anyone at any time.

If the police had these powers, however, people’s privacy and security would be put in danger.
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Therefore, the Fourth Amendment limits the power of law enforcement officers to interfere in people’s lives.

It protects the “right of the people to be secure… against unreasonable searches and seizures.”

Determining if a search or seizure is unreasonable while calculating an individual’s right to privacy can be a
highly debatable issue.

According to the U.S. Supreme Court, the limits to privacy are different in different situations.
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They depend on how much privacy a reasonable person could expect to have under the circumstances.

Generally speaking, people have greater privacy rights in their home than they do in their car or public places.
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Therefore, the police normally cannot search a home unless they have a warrant.

But warrantless searches are very much a common practice because courts have made many exceptions to the
warrant requirement as long as the search is considered reasonable.
SEARCH AND SEIZURE WITH A WARRANT
SEARCH WARRANTS

Law enforcement officers are allowed to conduct searches or seizures that invade someone’s privacy as long
as they obtain a search warrant first.

A SEARCH WARRANT is a court order from a judge that authorizes the search of a person or place.

Before a judge issues a warrant, someone must file an AFFIDAVIT—a sworn statement of facts and
circumstances—that provides the probable cause to believe that a search is justified.
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
The person making this complaint is typically a police officer, but it can be a victim or witness.

Probable cause may come from facts that are personally known to the officer, events the officer has witnessed,
or information provided by a trustworthy source.

If the judge believes that the officer has probable cause, a warrant will be issued.

An issued search warrant must specifically describe the person or place to be searched and the particular
things to be seized.

The purpose of requiring a search warrant is to take some power away from the police and vest it in a neutral
judge.

Once the search warrant is issued, the search must be conducted within a certain number of days specified in
the warrant.

Also, in many states the search must be conducted only in the daytime, unless the warrant expressly states
otherwise.

A warrant also generally does not give a police officer blanket permission to search anywhere and seize
anything.

It applies only to items, places, or people named on the warrant.

If the officer wants to conduct further searches or seizures, they must go back to the judge and obtain another
warrant.
HOME SEARCHES

Since the founding of America, the U.S. Supreme Court has held that a person is reasonably entitled to the
highest degree of privacy when inside their home.

Because the home is considered a person’s most private retreat, an officer may not enter the home without
first obtaining a search warrant, even if probable cause exists.

When the police have a warrant to search a house, the Fourth Amendment’s reasonableness requirement
usually means that they must knock, announce their purpose and authority, and request admission.

Police generally cannot enter a house forcibly—even with a warrant—unless they abide by this KNOCKNOTICE RULE.

However, the Supreme Court has allowed for no-knock entries when circumstances present a threat to the
officers or where evidence would likely be destroyed if advance notice were given.

Given the very strong right to privacy that is compromised when police search a home, the Supreme Court has
made it clear that the only exceptions to the search warrant requirement are when police are in hot pursuit of
a suspect, emergency circumstances exist, or when the occupant consents—all discussed later.
ELECTRONIC SURVEILLANCE
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
Police are sometimes called upon to utilize various types of surveillance techniques, consisting of
WIRETAPPING—any interception of a telephone transmission by accessing telephone signals—and electronic
EAVESDROPPING—listening in on conversations without the consent of the parties.

These types of surveillance are considered to be very intrusive; therefore, they are closely regulated by federal
and state law.

As a general rule, a search warrant is necessary before the police can engage in either wiretapping or
eavesdropping.

Similarly, police generally need a warrant in order to search e-mail records.

On the other hand, electronic recordings conducted by civilians are considered to be less protected.

Federal law allows recording of phone calls and other electronic communications with the consent of at least
one party to the call.

Thirty-eight states and the District of Columbia have followed federal law and permit individuals to record
conversations to which they are a party without informing the other parties that they are doing so.

These laws are referred to as one-party consent statutes, and as long as someone is a party to the
conversation, it is legal for them to record it.

Twelve states, including Michigan, require the consent of all parties to a conversation, under most
circumstances.
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The situation can get complicated when a person in a one-party consent state calls and records a conversation
with a person in an all-party consent state, but does not get that person’s permission.

There are several factors that can go into which consent law applies.

It is generally safer to assume that the stricter, all-party consent law will apply where either the caller or
receiver is in an all-party state.
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Often, notice will be considered sufficient to find consent.

For example, when someone calls tech support, the first thing they might hear is "this conversation may be
recorded for quality assurance."

Most courts hold that, if someone speaks after hearing this notice, they have given implied consent to the
recording.

Other less intrusive forms of legally permissible electronic surveillance include the pen register and the trap
and trace.

A PEN REGISTER device records every outgoing number dialed from a suspect’s telephone.

A TRAP AND TRACE device is similar, but it records every incoming number dialed from an outside line to the
suspect’s telephone.
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
These devices do not enable anyone to listen to phone conversations, they simply list telephone numbers.

The U.S. Supreme Court has held that the installation of such a device is not a search; so the Fourth
Amendment is inapplicable, meaning that police can install such devices for any reason and need not obtain a
warrant.
SEARCH AND SEIZURE WITHOUT A WARRANT

As discussed, searches of private homes usually require a warrant.

However, because of the number of exceptions to the Fourth Amendment warrant requirement, most searches
are warrantless.

These searches, nevertheless, must still be reasonable.

The courts have recognized the following situations as reasonable searches that may be legally conducted
without a warrant: searches incident to an arrest, plain view searches, hot pursuit searches, vehicle searches,
emergency searches, consent searches, public school searches, and garbage searches.
SEARCHES INCIDENT TO AN ARREST

When an officer arrests someone, they are permitted to search the arrested person without getting a warrant.

These searches are considered necessary to protect the arresting officer, because the person under arrest may
be hiding a weapon.

In addition, these searches also protect the legal case against the suspect by preventing the loss of evidence
that might be destroyed later.

Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and
the person’s surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.

To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search.

The general rule is that after an arrest the police may search a suspect and the area within a suspect’s
immediate control.

If an arrest takes place outside a house, the arresting officer cannot search the house at all.

To conduct a search broader in scope than a suspect and the area within the suspect’s immediate control, an
officer would have to obtain a warrant.

But police officers can make protective sweeps following an arrest.

When making a PROTECTIVE SWEEP, police officers can walk through a residence and make a visual
inspection of places where an accomplice might be hiding, like under beds and inside closets.

To justify making a protective sweep, police officers must have a reasonable belief that a dangerous
accomplice might be hiding inside a residence.
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
If a sweep is lawful, the police can legally seize contraband or evidence of crime that is in plain view.
PLAIN VIEW

If an object connected with a crime is in PLAIN VIEW and can be seen from a place where an officer has a right
to be, it can be seized without a warrant.

For example, if an officer legally stops a car for a traffic violation and sees a gun lying on the car seat next to
the driver, they may seize it without a warrant.

Likewise, if an officer has gained legal entrance into a suspect’s house and sees drug paraphernalia on a coffee
table, the officer does not need a warrant to seize the contraband.

It should also be noted that law enforcement officers may conduct searches and seizures based on sounds
and smells in addition to sight.
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HOT PURSUIT

Police in hot pursuit of a suspect are not required to get a search warrant before entering a building that they
have seen the suspect enter.
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The courts created this rule out of concern that some situations require immediate action by the police, and
that such actions would be hindered if an officer had to delay to obtain a search warrant.

Therefore, police are allowed to kick down doors and arrest suspects without a warrant when necessary.

It is also lawful to seize evidence found in plain view during hot pursuit of a suspected felon.
VEHICLE SEARCHES
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A vehicle is not given the same protection as a home.

The basic reason is that cars can easily be moved and the courts believe that people don’t have the same
expectation of privacy in their vehicle as they do in their homes.

Therefore, law enforcement does not need a warrant, even if they have adequate time to obtain one.

As a result, a police officer who has probable cause to believe that a vehicle contains contraband may conduct
a search of the vehicle, as well as any containers in the vehicle that might contain the contraband.

Once the police have probable cause to search a car, they don’t have to worry about whether the objects they
are searching belong to the driver or to any passengers.

Courts have generally found that it is reasonable for a person to expect more privacy for items placed inside a
vehicle’s trunk than for items placed in a vehicle’s passenger compartment.

Therefore, a rule has developed that probable cause sufficient for searching a vehicle’s passenger
compartment may not be sufficient to justify the search of the vehicle’s trunk.

So in order for an officer without a warrant to search the trunk of a vehicle, they must have probable cause to
believe contraband is concealed in the trunk.

A recurring issue in many auto searches is what has come to be known as furtive movements.

A FURTIVE MOVEMENT gives the appearance that a person is attempting to retrieve or conceal contraband.

An example of a furtive movement would be when an officer lawfully stops a vehicle and sees an occupant
bend down or reach behind a seat.

A police officer ordinarily can’t search a vehicle or its occupants following a routine traffic violation.

However, if the officer sees the driver or occupant make a furtive movement, the officer has a legitimate
concern for safety and is therefore permitted to search the area into which the suspect reached.

If contraband is found hidden in a car, rather than on one of the passengers, a presumption arises that the
contraband was possessed by the driver because they were in control of the vehicle.
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
In most states, a passenger in a vehicle is not presumed to be in control of the vehicle, and hence is rarely
convicted when contraband is discovered hidden in a car.

To convict a passenger in such cases, the prosecution must produce evidence that specifically links the
passenger with the contraband.
EMERGENCY CIRCUMSTANCES

In certain emergencies, the police are not required to get a search warrant.

These situations include searching a building after a telephoned bomb threat, entering a house after smelling
smoke or hearing screams, and other situations in which the police do not have time to get a warrant.

In such situations, waiting to get a warrant might result in harm to innocent people.
CONSENT SEARCHES

As a general rule, if a person consents to a warrantless search, the search automatically becomes reasonable
and therefore legal.

Consequently, whatever an officer finds during such a search can be used to convict the person.

Simply put, if a person consents to a search, they have waived their primary protection offered by the Fourth
Amendment.

In fact, the courts have made it clear that police officers do not have to tell people that they can refuse to
consent.

In other words, the police are not required to read any rights before asking consent of a search, unlike
Miranda.

Law enforcement can often be rather crafty about trying to get someone’s consent to a search.

They know that most people feel intimidated by police officers and are predisposed to comply with any
request by them.

However, to constitute a valid consent to search, the consent must be given freely and voluntarily.

Therefore, if a police officer produces consent through tactics of trickery or coercion, the consent does not
validate a search.

It is also suitable to give partial consent, therefore allowing police to search one particular area, but not
another.

Provided that the officer does not turn up probable cause while searching the area that was consented to be
searched, they must go no further than explicitly stated.

Normally, a person may grant permission to search only their belongings or property.
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
In some situations, however, one person may legally allow the police to conduct a search of another person’s
property.

For example, a wife may legally permit the police to search her husband’s dresser drawer, and parents may
legally permit the search of their child’s room.

There are exceptions, however.

For example, a landlord cannot permit the search of a tenant’s apartment, and a college official cannot permit
the search of a student’s dormitory room.

Like landlords, hotel managers cannot authorize searches of occupied customer rooms; however, searching
the same room after they’ve checked out is not an invasion of privacy.

For roommates, the answer is slightly more complicated.

If a roommate is home alone when the police arrive, they can consent to a search of any common areas that
they share with others.

However, a roommate cannot consent to a search of any areas that others inhabit exclusively, such as a
separate private bedroom.
PUBLIC SCHOOL SEARCHES

The U.S. Supreme Court has affirmed that public school students do have some Fourth Amendment
protections; however, school personnel have been granted broad discretion to search students and their
possessions in several situations.

The need to maintain order, discipline, and safety in schools lowers the bar for searches.

In most cases, teachers and administrators only need reasonable suspicion, as opposed to probable cause or a
warrant, that a crime has occurred to initiate a search.

Reasonable suspicion is based on even less evidence than probable cause, but must be more than a mere
hunch.

Consequently, there needs to be reasonable evidence that a student is or will be violating school rules or the
law.

When law enforcement is involved in a search, the probable cause standard must be used.

School liaison officers are police and not public school employees, therefore the Fourth Amendment demand
for probable cause fully applies to them.

Public school employees do not need to Mirandize students.

Miranda applies only when law enforcement is conducting interrogations in custodial environments.

If a police officer is present during a public school employee interview or interrogation and is an observer only,
Miranda still does not apply.
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
Schools are allowed to search student lockers on the theory that lockers belong to the school and that
students do not have a reasonable expectation of privacy in property owned by the school.

Most courts have also allowed drug-sniffing dogs to enter schools to search for drugs.

It should be noted that what little protection public school students have is not available to students at private
schools.

Private school officials are not constrained by the Fourth Amendment.

Therefore, officials at private schools may legally search a student for any reason; reasonable suspicion is not
required.
GARBAGE SEARCHES

People do not have a reasonable expectation of privacy for garbage that they leave out for collection.

Consequently, any garbage that a person places on a curb for pickup by a garbage collector can be seized
and searched by the police without a warrant.

In fact, law enforcement does not even need to establish reasonable suspicion that someone is involved in
criminal activity before they seize their curb-side garbage.

Therefore, police officers can snoop through curb-side garbage for any reason whatsoever.
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RULES, DOCTRINES, AND EXCEPTIONS
THE EXCLUSIONARY RULE

The EXCLUSIONARY RULE states that a court will exclude evidence that was obtained as the result of an
unreasonable search or seizure.

The intent of the exclusionary rule is to control police behavior.

It is felt that if police realize that evidence they obtain in violation of the Fourth Amendment cannot be used in
a criminal prosecution, they will control their behavior and assure that the constitutional rights of defendants
are observed.

The debate over the exclusionary rule has raged for years, with some people arguing that it makes no sense to
allow a criminal to go free simply because the police were sloppy.

People on the other side of the issue argue that the only way that the police can be controlled is by excluding
evidence that they obtain illegally.
THE FRUIT OF THE POISONOUS TREE DOCTRINE

A counterpart to the exclusionary rule is known as the DOCTRINE OF THE FRUIT OF THE POISONOUS TREE.

Under this doctrine, not only is the evidence directly obtained by the illegal search or seizure excluded, but so
is any evidence obtained indirectly as a result of such a search or seizure.

The fruit of the poisonous tree doctrine removes what would otherwise be a big incentive for police officers to
conduct illegal interrogations and searches.
THE GOOD FAITH EXCEPTION

In recent years, the U.S. Supreme Court has attempted to narrow the scope of the exclusionary rule, applying it
to fewer and fewer violations by the police.

Under the GOOD FAITH EXCEPTION, the exclusionary rule is not applied to an illegal search if the search was
conducted under a valid warrant which is later determined to be invalid.

Therefore, if the police conduct an improper search in good faith on a warrant, the search is valid and the
evidence is admissible even if the warrant was in fact invalid through no fault of the police.

The good faith exception is justifiable since it makes no sense to condemn the results of a search when police
officers have done everything reasonable to comply with Fourth Amendment requirements.

Remember, the purpose of the exclusionary rule is to curb the police, not a judge; therefore, if a judge makes
a mistake, this should not be grounds to exclude evidence.
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