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Fundamentals of Search and Seizure Law

The Fourth Amendment grants protection against “unreasonable searches and seizures” by requiring police to have “probable cause” before conducting a search or making an arrest. The Fourth Amendment only applies to certain types of police activities, and understanding this area of the law involves knowing when a search or seizure has occurred. If the police have conducted an illegal search or seizure, any evidence they collected in the process of those activities will be inadmissible at trial under the “exclusionary rule.” Depending on the evidence in question, an illegal search or arrest can have a major effect on a criminal case — or hardly any effect at all.

Seizure of the Person: An Arrest Versus a Stop

An arrest is defined as putting someone in a situation in which a reasonable person would believe that he or she is not free to leave. The police can only do this if they have probable cause: They reasonably believe that a crime has been committed and that the suspect they are arresting has committed that crime. In contrast, police can stop someone on the street and ask him or her questions based only on a reasonable suspicion that he or she might be involved in some kind of criminal activity.

An arrest triggers the right of the police to make a valid and warrantless “search incident to arrest” of a suspect and his or her immediate surroundings. Whether police conducted a mere stop or a full-scale arrest can become crucial if important evidence was obtained as a result of the related search.

What is a Search?

A “search” refers to the type of police activity that is protected by the umbrella of the Fourth Amendment. In general, a search occurs when law enforcement looks in an area in which a person would have a reasonable expectation of privacy. Courts have determined that if an object is in range of an officer’s natural senses – in other words, he can see it, smell it or hear it — then the officer has not conducted a search and may seize the object without violating the Fourth Amendment. If the police see something in a car by looking in the car window during a traffic stop, for example, it’s not considered a search. If they haven’t performed a search, the evidence police officers take is not protected by the exclusionary rule and can be admitted at trial.

Searches and Arrests Without a Warrant

A warrant is a court order based on law enforcement’s belief that they have probable cause to conduct a search or make an arrest. Search warrants must be specific both in describing the place to be searched and the person or objects they wish to seize. Having warrants in place is always preferable, as prosecutors can more easily defend any later evidentiary challenges that may arise as a result of a warrantless search.

Courts have long held that a “nonconsensual warrantless entry” into someone’s home is presumptively illegal. Despite the home’s sacred place in American law, courts have consistently allowed police to enter someone’s home without a warrant if exigent circumstances exist. For example, if police believe a suspect has been involved in a violent crime or is armed, the police can enter the suspect’s house without consent if they believe he is there. Likewise, police can enter a home to conduct a search if they believe evidence will likely be destroyed if they wait for a warrant.

Fourth Amendment law is nuanced and always changing. Having a lawyer who is an expert at navigating this very complicated area is crucial in determining whether Fourth Amendment rights have been violated and what effects this may have on a particular case.

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