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| Annotations |
| Search and Seizure |
| History and Scope of the Amendment |
| History |
| Scope of the Amendment |
| The Interest Protected |
| Arrests and Other Detentions |
| Searches and Inspections in Noncriminal Cases |
| Searches and Seizures Pursuant to Warrant |
| Issuance by Neutral Magistrate |
| Probable Cause |
| Particularity |
| First Amendment Bearing on Probable Cause and Particularity |
| Property Subject to Seizure |
| Execution of Warrants |
| Valid Searches and Seizures Without Warrants |
| Detention Short of Arrest: Stop-and-Frisk |
| Search Incident to Arrest |
| Vehicular Searches |
| Vessel Searches |
| Consent Searches |
| Border Searches |
| "Open Fields" |
| "Plain View" |
| Public Schools |
| Government Offices |
| Prisons and Regulation of Probation |
| Drug Testing |
| Electronic Surveillance and the Fourth Amendment |
| The Olmstead Case |
| Federal Communications Act |
| Non-Telephonic Electronic Surveillance |
| The Berger and Katz Cases |
| Warrantless "National Security" Electronic Surveillance |
| Enforcing the Fourth Amendment: The Exclusionary Rule |
| Alternatives to the Exclusionary Rule |
| Development of the Exclusionary Rule |
| The Foundations of the Exclusionary Rule |
| Narrowing Application of the Exclusionary Rule |
| Operation of the Rule: Standing |
Search and Seizure
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 no Warrants shall issue, 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.
secure in their persons, houses,
papers, and effects, against
unreasonable searches and
seizures, shall not be violated,
and no Warrants shall issue, 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.
It would be convenient if you could
obtain search and seizure warrants
the same way TV cops get them. You
know… "I'll call in the warrant," or,
the ADA tells the detective, "I'll get
the warrant." But, that's TV. The
plot would get lost if they didn't take
shortcuts.
obtain search and seizure warrants
the same way TV cops get them. You
know… "I'll call in the warrant," or,
the ADA tells the detective, "I'll get
the warrant." But, that's TV. The
plot would get lost if they didn't take
shortcuts.
I've linked you directly to everything
you need to know about search and
seizure at Findlaw.com. You'd think
that, with such easy access to the
Fourth Amendment and its
Annotations, police officers would be
well versed in search and seizure.
You'll learn that's not the case, but
police officers are not alone. As your
police career progresses, you'll hear
some pretty strange interpretations of
the Fourth Amendment from judges
and lawyers.
you need to know about search and
seizure at Findlaw.com. You'd think
that, with such easy access to the
Fourth Amendment and its
Annotations, police officers would be
well versed in search and seizure.
You'll learn that's not the case, but
police officers are not alone. As your
police career progresses, you'll hear
some pretty strange interpretations of
the Fourth Amendment from judges
and lawyers.
As a police officer, you'll quickly
learn that nobody agrees on anything.
With all the disagreement around you
on a constant basis, you have to be
careful not to throw up your hands
and go with the flow. More often than
not, the flow has it wrong. When it
comes to search and seizure, police
officers can get pretty creative.
learn that nobody agrees on anything.
With all the disagreement around you
on a constant basis, you have to be
careful not to throw up your hands
and go with the flow. More often than
not, the flow has it wrong. When it
comes to search and seizure, police
officers can get pretty creative.
When you watch the real cops' shows
on television, view them strictly as
entertainment, for entertainment
value is the measure by which the
shows' producers air segments of real
police action. As long as it's
entertaining, they couldn't care less
about the rules of any constitutional
amendments.
on television, view them strictly as
entertainment, for entertainment
value is the measure by which the
shows' producers air segments of real
police action. As long as it's
entertaining, they couldn't care less
about the rules of any constitutional
amendments.
The rules regarding searches and
seizures really aren't that
complicated. Your most frequent
searches and seizures will be done
without a warrant. The most
frequent, and undisputed, valid search
you'll conduct is one incident to arrest
seizures really aren't that
complicated. Your most frequent
searches and seizures will be done
without a warrant. The most
frequent, and undisputed, valid search
you'll conduct is one incident to arrest
Search and seizure warrants are most often obtained by police investigators in specialized units; however, any
police officer can apply for, and obtain, a search and seizure warrant. Educate yourself on search and seizure,
but don't be in a big hurry to obtain and execute your first search and seizure warrant. I'm not telling to join
the majority of police officers who will never apply for a search and seizure warrant. I'm just telling you to
gain some experience, before you knock down somebody's door. Better yet, do your first warrant on something
simple.
police officer can apply for, and obtain, a search and seizure warrant. Educate yourself on search and seizure,
but don't be in a big hurry to obtain and execute your first search and seizure warrant. I'm not telling to join
the majority of police officers who will never apply for a search and seizure warrant. I'm just telling you to
gain some experience, before you knock down somebody's door. Better yet, do your first warrant on something
simple.
Let's say you've established probable cause to believe that Suspect Jones has a full size refrigerator stored in
his basement which was stolen in a recent burglary. You'll execute this warrant with the appropriate level of
safety; however, it's low risk since how quickly you enter Suspect Jones' dwelling is not critical. You can
knock on his door and wait as long as you like for Jones to answer the door. Unless Jones has a sink hole in
his basement, he's not going to be able to get rid of that refrigerator.
his basement which was stolen in a recent burglary. You'll execute this warrant with the appropriate level of
safety; however, it's low risk since how quickly you enter Suspect Jones' dwelling is not critical. You can
knock on his door and wait as long as you like for Jones to answer the door. Unless Jones has a sink hole in
his basement, he's not going to be able to get rid of that refrigerator.
Let's say Jones does the next best thing, and he doesn't answer the door. You've got a search and seizure
warrant. You've waited a reasonable amount of time [there's that word reasonable again] , so you force the
door to gain entry. As you secure the dwelling to establish it is unoccupied, you find a refrigerator in the
basement. It's the same brand and color as the refrigerator in your warrant, and the serial number matches.
warrant. You've waited a reasonable amount of time [there's that word reasonable again] , so you force the
door to gain entry. As you secure the dwelling to establish it is unoccupied, you find a refrigerator in the
basement. It's the same brand and color as the refrigerator in your warrant, and the serial number matches.
That simply means you've lawfully
arrested a person for a particular
crime or violation. Your search of the
individual can be relatively intrusive.
By intrusive, I mean you can
throughly search the person's clothing
and personal effects. When you find,
let's say, a thumbnail sized baggy of
suspected heroin, you can lawfully
charge the person with that crime in
addition to the crime for which you
originally arrested him. In some
cases, especially where drugs are
involved, the search can become even
more intrusive to include body
cavities. With the exception of
shining your flashlight into your
suspect's mouth to check for
contraband, don't get carried away on
body searches. Your department will
have rules regarding intrusive body
searches. If you know what's good for
you, you'll follow those rules without
exception.
arrested a person for a particular
crime or violation. Your search of the
individual can be relatively intrusive.
By intrusive, I mean you can
throughly search the person's clothing
and personal effects. When you find,
let's say, a thumbnail sized baggy of
suspected heroin, you can lawfully
charge the person with that crime in
addition to the crime for which you
originally arrested him. In some
cases, especially where drugs are
involved, the search can become even
more intrusive to include body
cavities. With the exception of
shining your flashlight into your
suspect's mouth to check for
contraband, don't get carried away on
body searches. Your department will
have rules regarding intrusive body
searches. If you know what's good for
you, you'll follow those rules without
exception.
Can you continue to search? The answer is no. You've located the contraband listed in your warrant, and any
further searching is not authorized by your warrant. However, as you were entering the basement, another
police officer opens a closet door in an upstairs bedroom where he finds Suspect Jones hiding. Inside the
closet, with Jones, are a dozen brand new toaster ovens stacked from floor to ceiling. The ovens are in the
original packaging in plain view, and you subsequently establish the ovens were taken in a separate burglary.
Can you charge Suspect Jones with charges relating to the second burglary and seize the toaster ovens? The
answer is, yes.
further searching is not authorized by your warrant. However, as you were entering the basement, another
police officer opens a closet door in an upstairs bedroom where he finds Suspect Jones hiding. Inside the
closet, with Jones, are a dozen brand new toaster ovens stacked from floor to ceiling. The ovens are in the
original packaging in plain view, and you subsequently establish the ovens were taken in a separate burglary.
Can you charge Suspect Jones with charges relating to the second burglary and seize the toaster ovens? The
answer is, yes.
Jones' lawyer will argue that the seizure of the toaster ovens is inadmissable since they were not listed in the
warrant as items to be seized. Since charges relating to the second burglary were based on that seizure, the
attorney will argue that the charges against Jones regarding the second burglary should be dismissed. Jones'
attorney might also argue that the closet, in which Jones and the ovens were found, was obviously too small to
contain the full size refrigerator. Therefore, the closet should have never been opened in the first place. This
argument has validity since no search for the refrigerator could be made in areas, or compartments, which
were obviously to small to contain the refrigerator.
warrant as items to be seized. Since charges relating to the second burglary were based on that seizure, the
attorney will argue that the charges against Jones regarding the second burglary should be dismissed. Jones'
attorney might also argue that the closet, in which Jones and the ovens were found, was obviously too small to
contain the full size refrigerator. Therefore, the closet should have never been opened in the first place. This
argument has validity since no search for the refrigerator could be made in areas, or compartments, which
were obviously to small to contain the refrigerator.
On the other hand, the State will argue that the police officer who opened the closet door was not searching for
the refrigerator. The State will argue that the only reason the police officer opened the closet was a reasonable
effort to locate the suspect who the police officers could reasonably believe was hiding inside the dwelling. The
State would point out that the reasonableness of the police officer's action is supported by Jones' actual
presence inside the closet.
the refrigerator. The State will argue that the only reason the police officer opened the closet was a reasonable
effort to locate the suspect who the police officers could reasonably believe was hiding inside the dwelling. The
State would point out that the reasonableness of the police officer's action is supported by Jones' actual
presence inside the closet.
Will the Judge hold the seizure of the toaster ovens as admissible evidence? Who knows? While one judge
would have no problem with the seizure, another judge may side with the defense. Had the toaster ovens been
stacked, in plain view, in the basement beside the refrigerator, there probably wouldn't even be any argument.
I say "probably," because remember, in your business, nobody agrees on anything.
would have no problem with the seizure, another judge may side with the defense. Had the toaster ovens been
stacked, in plain view, in the basement beside the refrigerator, there probably wouldn't even be any argument.
I say "probably," because remember, in your business, nobody agrees on anything.
This is why some, or more than some, police officers view the Fourth Amendment, and its protections, as more
of a nuisance rather than a unique and important protector of individual rights. The truth is this. If you are a
reasonable person, and you make an effort to study, and understand, the Fourth Amendment, you will never
have a problem complying with rules of search and seizure. You will rarely lose a case based on search and
seizure, and your knowledge will be evident to judges; prosecutors, and defense attorneys.
of a nuisance rather than a unique and important protector of individual rights. The truth is this. If you are a
reasonable person, and you make an effort to study, and understand, the Fourth Amendment, you will never
have a problem complying with rules of search and seizure. You will rarely lose a case based on search and
seizure, and your knowledge will be evident to judges; prosecutors, and defense attorneys.
4th
Amendment
Amendment
U.S. Constitution
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