Know Your Rights - Searches and Search Warrants in Lake Tahoe

Know your Rights – Searches and Search Warrants

By admin, April 8, 2010

Every person has a Constitutional right protecting them against unreasonable searches and seizures. (Fourth Amendment) The Fourth Amendment was ratified as a means to guard against abuse of the writ of assistance, better defined as a “general search warrant” in the American Revolutionary times. The Fourth Amendment specifies all searches and arrest warrants be sanctioned judicially, and supported by probable cause. In 1961 the Supreme Court ruled the 4th Amendment to applicable by way of Due Process outlined in the Fourteenth Amendment.

The 4th Amendment specifically only applies to government employees, and does not protect you from searches and seizures (reasonable or unreasonable) conducted by a private citizen, and only applies to criminal law with no protection under this amendment for civil law.

The Supreme Court has ruled that searches and seizures can violate the reasonableness required pursuant to the 4th Amendment in certain cases. However, not all actions by governmental authorities to obtain or collect information and evidence on a person constitute a search. The actions of governmental authorities are what trigger the protections guaranteed pursuant to the 4th Amendment. If no search occurred, there may be no necessity (requirement) for a warrant. On the contrary if a search occurred there may be a necessity (requirement) for a warrant.

In 1968 the Supreme Court ruled that in certain circumstances police officers (governmental employees) can conduct limited warrant-less searches with suspicion levels less than that of probable cause in certain circumstances. In certain situations officers may conduct a “pat down search”. This activity is primarily done for the safety of the officer (s) and to determine if a “suspect” has a weapon of some sort. An officer needs to articulate specific facts in order to justify their actions; a vague hunch does not work.

The 4th Amendment mandates a law enforcement officer receive permission from a court of law (Judge or Magistrate) in order to lawfully search and seize evidence in the course of investigating a crime. The permission granted by the court is called a warrant. When a law enforcement officer conducts a search and seizure without a lawfully issued warrant it may be considered unreasonable and or unconstitutional. However there are certain exceptions that allow un-warranted searches and seizures.

Prior to 1914 evidence was allowed to be admitted into a criminal case no matter how it was obtained. The Supreme Court adopted the “exclusionary rule” in Weeks vs. United States. Other decisions came shortly after giving further protection of the 4th Amendment. One such ruling dealt with tips resulting from illegally obtained evidence is also inadmissible in trials, known as “fruit of the poisonous tree”. The main function of this protection is to deter law enforcement officers from violating suspects 4th Amendment rights.

Through the years courts have established exceptions to the warrant requirements, for example:
Plain view, with probable cause and a reason to be present an officer may seize objects that are in “plain view”.

Open field, fields, water, woodlands etc. may be searchable without a warrant. The expectation of privacy level is far less than that of a person’s home, person or vehicle. The Supreme Court has ruled in a 1924 case that the 4th Amendment protection does not extend to open fields.

Curtilage, the outdoor area’s immediately surrounding a home may be protected, and considered an extension of a person’s home. Therefore subject to privacy protections afforded in the 4th Amendment. To fall outside of the realm of cartilage interpretation there may need to be a great distance, fence, plants, etc to separate the area and be considered an open field.

Exigent circumstances, an exception to the warrant requirement may be an exigent circumstance. This happens when a law enforcement officer reasonably believes there is a need to protect life or property. When a search is not motivated by intent to arrest or obtain evidence an un-warranted search may not violate persons 4th Amendment rights.

Vehicles, persons in automobiles generally have a lesser expectation of privacy. A vehicle usually does not serve as a person’s residence or repository of personal belongings. A law enforcement officer needs some sort of probable cause and a reasonable belief the vehicle, occupants, and/or contents are connected with criminal activity. As a general rule items in “plain view” may be seized with out a warrant.
Searches at time of arrest, its common and has been found to not violate the 4th Amendment to search an individual incident to an arrest. Two major factors come into play, 1. Officer safety, the officer needs to check for weapons. 2. Preservation of evidence, the officer needs to gain control of evidence to prevent destruction by the arrested party.

Example; It’s reasonable for the officer to search the area within the arrestee’s immediate control, that is, the area from which the defendant may gain access to a weapon or evidence. A search of the room in which the arrest is made is therefore permissible, but the same is not true of a search of other rooms, as the arrestee would not probably be able to access weapons or evidence in those rooms at the time of arrest.
Borders & Airports, a person, vehicle, and personal effects may be searched without a warrant at any United States boarder or international airport. The “border search” exception even relaxes the necessity for probable cause. While at a border crossing or international airport any person may be searched at random with virtually no violation of his/her 4th Amendment rights. However a search that intrudes on a person’s dignity and privacy must be supported by reasonable suspicion.

Misc. exceptions, some of the other exceptions used for the basis of a warrant less search are; Public Schools, Government Offices, Jail and Prison Cells, Searches Made With Consent.

Fourth Amendment protection does not apply to an arrest and or seizure by a private person. (Citizens Arrest) Most states have laws governing the specific circumstances when a private person may arrest another. Some general examples of when a private person would make an arrest would be when a felony or misdemeanor crime has been committed and possibly witnessed by the arresting citizen. The arresting citizen should have a reasonable belief that the person arrested has committed the crime. A private person making a citizens arrest has no qualified immunity and may face a civil lawsuit if they’re mistaken.

This information has been provided as a reference, and should in no way be relied upon as legal advice. If you have questions or concerns of a specific matter you are encouraged to seek the advice of a competent attorney.

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