Legal or Illegal Search?

Disclaimer: This is not a lesson on how to hide
contraband and get away with it! These laws are
meant to PROTECT you from intrusions of privacy,
not to ensure that you won’t get in trouble when
4th Amendment
Protects people from
unreasonable searches and
seizures by the government.
Need Search Warrant
(probable cause, oath, and
description of place)
HOWEVER not a guarantee
against all searches and
seizures, but only those that
are deemed unreasonable
under the law.
Seems simple but search and
seizure law is complex
Terms to Know
UNREASONABLE: Arbitrary; not
guided by or based on good sense
PROBABLE CAUSE: police has the facts
that support the belief that the person
in question broke the law
In other words… police can’t search a
home, car, or person without some
kind of justification (usually a
reasonable belief that they will find
evidence of a crime there OR stop a
crime in progress)
Payton v. New York, 445 U.S. 573 (1980)
How to determine an “Unreasonable Search?”
Court looks at facts and circumstances of each case
*IF unreasonable search determined, any
evidence found in search cannot be used
at the trial
*not a “get out of trial” card
Evidence seized cannot be used at trial
First Question – Was there a search warrant?
Def: a piece of paper from a judge that gives an
officer permission to search a person or place
Judge 
convinced that there is a REAL NEED to search
- Officer has
- Officer must present
- NEUTRAL magistrate (no
connection or overzealous to
the case) State v. Freemont
- Officer must
SPECIFY what they are
they want to look
Payton v. New York, 445 U.S. 573 (1980).
Police like search warrants for drugs
and/or small stolen items because they
allow them to search EVERYWHERE
because these thing could be hidden
So if they happen to find a stash of kiddie porn in a
desk drawer it would be completely legal evidence
to use in court
#1. Limited Time
Period (avg 10 days)
#2. Some States – only
executed during the
#3. Location
Does NOT necessarily
authorize a general
search of EVERYTHING
in a specified place
Scenario – not a search of everywhere
If the police have the warrant to search a
house for stolen 20” TVs or other larger
items, it would be UNREASONABLE for
them to look in desk drawers, envelopes,
or other small places where a TV could
not possibly be hidden
What if they find something else (ex:
drugs) while searching for the TVs?
• If cop opens a closet and find drugs in
there, it was a reasonable
. place to
search (a TV will fit in the closet).
– The drugs can be used against the
• However, if cop opens a drawer
where a TV could not fit, and finds
drugs, it is inadmissible.
Criminal Attorney’s Advice:
Don’t Argue and Pay Attention
• If the police show up at your door with a search warrant,
let them in.
• Stay calm.
• Ask to see the warrant and read it carefully.
• Watch them as they search your home and make sure they
restrict the search to the area specified in the warrant.
• Try to keep written notes about where the officers
searched and what items they seized.
• Don’t argue with them.
• If they search in an area where they’re not supposed to
or seize something not listed in the warrant, you can
always challenge the search and seizure later if you’re
charged with a crime.
police, take the
following steps to
ensure you're in
the legal clear:
Can I videotape the cops searching my house? YES
Tell police you are recording them - the consent of all
parties for you to record a conversation (PENNSYLVANIA)
-rule does not apply to on-duty police
If they ask WHAT ARE YOU DOING? – AVOID - “I’m recording you to
make sure you’re doing your job right” or “I don’t trust you.”
Instead - “Officer, I’m not interfering. I’m asserting my First
Amendment rights”
police, take the
following steps to
ensure you're in
the legal clear:
Can I videotape the cops searching my house? YES
Comply with their requests to step back or identify
- don’t physically interfere with their work
Keep your camera out of the way
- low and close to your body but in the open
There are Search Warrant exceptions
#1 Lawful arrest
- most common exception
Allows police to search a
LAWFULLY arrested person and
the area IMMEDIATELY around
that person for hidden
weapons or for evidence that
might be destroyed
Justin is arrested for being
drunk and disorderly.
When he is taken to the
police station, he is
searched and narcotics are
found in his pocket. He
may be arrested for
#1 Lawful arrest
If arrested in house, officers
allowed to search places where
someone might jump out or
where the arrestee might have
a weapon.
NOT be searched unless search
warrant and arrest warrant
Ex: The police arrest you in your living room on charges of murder.
They may open the door of your coat closet to make sure that no
one else is hiding there, but may not open your medicine
cabinet because an accomplice could not hide there.
When person VOLUNTARILY agrees to a search
WITHOUT Probable Cause AND Search Warrant
**A person may legally
allow the police to
conduct a search of
another person’s
property (Even child –
common area – not
locked bedroom)
Davis v. United States, 328 U.S. 582 (1946)
What about my landlord? NO – can’t consent to search UNLESS HAVE
Staying in a Hotel? Nope
Parents? YES
College Roommate?– May not consent to bedroom but common area -ok
#3 Plain View
If object connected to crime is in
PLAIN VIEW and can be seen
by an officer from a place
he/she HAS A RIGHT to be, it
CAN BE SEIZED without a
Cop to search a bag,
probable cause is
- Can ask you – if you
say yes – they can
- if you say no – they
can’t unless they arrest
Maryland v. Macon, 472 U.S. 463 (1985).you (#1)
Go back to TVs Scenario
Cops can’t open drawer and charge you with
drug possession
HOWEVER if drawer was already open and
there are drugs in it, then they are in "Plain
The officer did not
have to open the
drawer and search it,
so those items are
admissible in court
They will just go call the judge and have
him fax or email an update to the warrant.
(few minutes, to a few days)
#4 Stop and Frisk
If officer thinks a person is behaving suspiciously and is
likely armed, he/she can be searched (pat down out clothes
– cannot manipulate objects to feel what they are)
Why allowed?
*safety of officers and
bystanders (injured by a person
carrying a concealed weapon)
Plain View Doctrine – if cop feels an
object that is NOT a weapon but is
immediately apparent to the cops as
drugs, he can seize the drugs
*Don’t need to give reason to suspect,
only to a supervisor and/or judge later
on (that he/she had a reason that
he/she thought a crime had happened Terry v. Ohio, 392 U.S. 1 (1968)
Minnesota v. Dickerson, 508 U.S. 366 (1993)
Anyone heard of the Terry Stop? Real Case 1968
What is it?
Def: a brief seizure of a
person for the purpose of
- as part of this questionasking, officers are allowed
to do a LIMITED frisk for
their OWN SAFETY (to make
sure the person to whom
they are talking doesn’t
have a weapon)
Supreme Court Challenge 
Court said Terry Stop is brief
and less intrusive than an
arrest and full search –
lower standard justified
Reasons to stop someone:
- Loitering and appears not to Depends on - # of
fit the time and place
officers present, #
(looking for something)
of suspects and
- Matches a “WANTED” poster
- Acts strangely, or emotional,
fearful, angry, intoxicated
- Present at a crime scene
- Running away
Reasons to stop someone:
AND - Present in a high-crime area
(HOWEVER must be with something else)
*Sam Wardlow Case
Wardlow – 44 yr old black man
- Standing on sidewalk in Chicago’s West Side (a high crime
- He sees police officers
he started running away
Police saw him running – chased him down  Caught him –
patted him down – found a handgun
The fact that he was running in a high crime area gave them
“reasonable suspicion” that he may have been doing
something illegal
~ Illinois v. Wardlow
#5 Emergency Situations when a crime is
being committed (need probable cause)
In certain emergencies  searching a
building after a telephoned bomb threat,
entering a house after smelling smoke or
hearing screams, and other situations where
police doesn’t have time to get a warrant
Hot Pursuit of a suspect – can enter a
building that the suspect entered and can
also seize evidence
Officer Smith is walking past Mrs. Jones’ store when she
rushes out screaming “Help, police!” She tells officer that she
has been robbed by someone who had a gun, a red
sweatshirt, and glasses. The person took the credit card
machine with him along with a paper bag of the money from
the cash register. The officer looks up and sees a man with
the same description running and carrying a paper bag. The
officer MAY arrest the man and use any objects on him as
evidence against him.
BUT if the officer does NOT see anyone
and takes Mrs. Jones to the police
station where she identifies the robber
from a lineup, an arrest warrant is
necessary before the officer goes to his
house and arrests him . A search
warrant is also necessary to search the
suspects house for the stolen money
and credit card machine.
#6 Border/Airport Searches
Customs agents are authorized to search
without warrants and without probable cause
- Baggage (including carry-on)
- Person (metal detectors)
- Purse and/or Wallet
- Vehicles
- Similar belongings entering country
United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
#7 Public Place
Law enforcement officials do not need a warrant to
search a trash can that a homeowner sets out for
collection in a publicly accessible area next to his
No reasonable
expectation of
privacy for things
that you make no
definite attempt
to keep private
Also applies to conversations with wiretapped
U.S. v. Redmon, No. 96-3361, 7th Cir., March 10, 1998.
White (1971)
Legal or
Police see James standing at
a bus stop on a downtown
street, in an area where there
is extensive drug dealing. The
officers ask James if they can
look in his bag and he says
yes. They open the bag and
find drugs
Legal Search CONSENT
Legal or
After Tyler checks out of
a hotel, the cops ask the
manager to turn over
the contents of the trash
can, where they find
notes planning a
Legal Search – PUBLIC
Legal or
Ray is seen shoplifting at
the mall. Police chase him
home and arrest him
down the street from his
house. They search the
house without a
awarrant and find a lot
of stolen car stereos
Illegal Search – NO
#8 Special Needs
Exceptions that do not fit into other categories.
• These include probation and parole searches,
school searches, searches of highly regulated
businesses (such as firearms dealers, pawn
shops, and junkyards), employment and
educational drug screening, and the immediate
search for “temporary" evidence (such as bloodalcohol content).
-Same rules apply (see bullet points)
Search and Seizures,
Due Process, and Public Schools
• 4th Amendment- “unreasonable” searches and
– Privacy and making sure public schools don’t get
overzealous in investigating violations
• 5th Amendment – “Due Process”
– School officials who plan to discipline a student
must provide the alleged wrongdoer with 2 rights:
(1) Schools CANNOT hold or punish without specific
Information about the charges and the evidence behind
(2) A chance to tell his/her story
(not elaborate – P. Office)
Situations where 4th and 5th would likely
(1) Drug Testing students in
extracurricular activities
(2) Drug-sniffing dogs on campus
(3) Locker searches and metal detectors
(4) Backpacks, wallet, personal computer
(5) Searching student’s car in parking lot
(6) Pocket Searches
Between school safety and discipline
versus student rights
Criminal Standard
Law enforcement – “probable cause” that a crime had
been committed
= presenting evidence to judge – obtain warrant –
search private property
School Standard
“reasonable suspicion” – no warrant necessary
Why different standard? AGE and VULNERABILITY of
student population and need of school officials to look
out for their health and safety
Is it against school policy ?
Students’ Rights
(1)If contraband items are in plain view –
can be seized without probable cause,
reasonable suspicion, or a warrant
Students’ Rights
(2) Lockers
-expectancy of privacy – none
-Why? Schools own lockers (policy)
*control lockers
The search may begin when: a drug dog indicates that there
may be some contraband such as drugs in the locker, when a
student reports concern of what another student may have
in his locker, or when the administration calls for a random
Students’ Rights
(3) Purses and Book Bags
SUSPICION to search
personal items
New Jersey v. T.L.O.
New Jersey v. T.L.O.
In 1980, a teacher at Piscataway High School in Middlesex County, New Jersey, found
T.L.O. and another girl smoking in a restroom—a place that was by school rule a
nonsmoking area.
The two girls were taken to the principal's office where T.L.O.'s companion admitted that she had been
smoking in the restroom.
T.L.O. denied smoking there. She denied that she smoked at all.
An assistant vice-principal demanded to see T.L.O.'s purse.
Searching through it he found a pack of cigarettes. He also found rolling papers, a pipe, marijuana, a large wad of dollar bills, and two letters
that indicated that T.L.O. was involved in marijuana dealing at the high school.
T.L.O. was taken to the police station where she confessed that she had sold marijuana
at the school.
A juvenile court sentenced her to a year's probation.
The State Supreme Court overturned the decision, stating that T.L.O.'s 4th Amendment rights had been
The State of New Jersey asked that the Supreme Court hear its appeal
• The presence of rolling papers in the purse gave rise
to a reasonable suspicion in the principal's mind that
T.L.O. may have been carrying drugs, thus, justifying a
more thorough search of the purse.
Students’ Rights
(4) Body Searches, Pat-downs, Pocket Searches
Pat-downs – minimally intrusive
Strip Searches – highly intrusive (require probable cause)
Pocket Searches – Stern v. New Haven Community Schools
*were lawful because school officials had reasonable
suspicion or reasonable cause to believe that the
student had contraband on him
Let’s take a look
at your
What Do You
think homework
Students’ Rights
(5) Canine Searches
Non-intrusive since there is no expectation of
privacy in the air around objects
-only explore what is within “plain smell”
Students’ Rights
(6) Student Drug Testing
Vernonia School District v. Acton
In the mid-1980s, officials in the school district in Vernonia, noticed a rise in drug use among
the students
*Disciplinary problems arose in frequency and severity.
*Student athletes were "the leaders of the drug culture" prevalent
among Vernonia's students
* School officials were concerned that drug use increases the risk
sports-related injury.
All student athletes would be required to submit to the program as a condition of participating in
*All athletes were tested at the beginning of the season
*10% of the athletes were selected randomly every week to provide a urine sample.
The samples were collected in a manner that preserved the students' modesty.
 If a student's sample tested positive, the student was given the option of either
undergoing counseling and submitting to six weekly drug tests or
sitting out the remainder of that season as well as the following season.
James Acton, a student, was denied participation in his school's football program when he and
his parents refused to consent to the testing
Students’ Rights
(6) Student Drug Testing con’t
Vernonia School District v. Acton
Supreme Court – agreed
Student athletes – leaders of drug culture
Since voluntary – themselves under rule
Test’s purpose – NOT PUNISH
Board of Education v. Earls
Have right to impose random drug testing as a condition for
students to participate in virtually any extracurricular
Students’ Rights
(7) Car Searches
T.L.O. applied to Student vehicles
searches by school officials parked on
school property
What does it all mean?
• Issues of privacy, search and seizures, and
due process rights can be highly charged
and emotional
Need to keep students safe and give them
due process
the desire to let them learn and grow will
Any Questions?