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FAQ's - Searches & Seizures: The
Limitations of the Police
Although
people in the United States are entitled to privacy
and freedom from government intrusion, there is a
limit to that privacy. State or federal police
officers are allowed, where justified, to search
your premises, car, or other property in order to
look for and take illegal items, stolen goods or
evidence of a crime. What rules must the police
follow when engaging in these searches and seizures?
What can they do in upholding the laws, and what
can't they do?
What the
Police MAY Do:
- Under
the Fourth Amendment to the U.S. Constitution,
police may engage in "reasonable" searches and
seizures.
- To
prove that a search is "reasonable," the
police must generally show that it is more
likely than not that a crime has occurred,
and that if a search is conducted it is
probable that they will find either stolen
goods or evidence of the crime. This is
called probable cause.
- In
some situations, the police must first make
this showing to a judge who issues a search
warrant. In many special circumstances,
however, the police may be able to conduct a
search without a warrant. In fact, the
majority of searches are "warrantless."
Examples are discussed below.
- Police
may search and seize items or evidence when
there is no "legitimate expectation of privacy."
In other words, if you did not have a privacy
interest in the items or evidence, the police
can take them and, in effect, no "search" has
occurred.
Note: In deciding whether there was a
"legitimate expectation of privacy," a court
will consider two things:
- Did
you have an expectation of some degree of
privacy?
- Was
that expectation reasonable in our society's
view?
Example:
You have a semi-automatic rifle that you stole
from a pawnshop. You leave the rifle laying on
the hood of your car when you get home. You do
not have a "legitimate expectation of privacy"
with regard to things you leave on the hood of
your car, and the police may take the rifle. No
search has occurred.
- Police
may use first-hand information, or tips from an
informant to justify the need to search your
property. If an informant's information is used,
the police must prove that the information is
reliable under the circumstances.
- Once a
warrant is obtained, the police may enter onto
the specified area of the property and search
for the items listed on the warrant.
- Police
may extend the search beyond the specified area
of the property or include other items in the
search beyond those specified or listed in the
warrant if it is necessary to:
- Ensure their safety or the safety of others;
- Prevent the destruction of evidence;
- Discover more about possible evidence or
stolen items that are in plain view; or
- Hunt for evidence or stolen items that,
based upon their initial search of the
specified area, they believe may be in a
different location on the property.
Example:
The police have a warrant to search your
basement for evidence of a drug manufacturing
operation. On their way through your house to go
down to the basement, they see a cache of guns
sitting on the kitchen table. They may take the
guns in order to ensure their safety while
searching your basement.
Permissible Searches Without a Warrant
- Police
may search your property without a warrant if
you consent to the search. Consent must be
freely and voluntarily given, and you cannot be
coerced or tricked into giving it.
- Police
may search your person and the immediate
surroundings without a warrant when they are
placing you under arrest.
- If a
person is arrested in a residence, police may
make a "protective sweep" of the residence in
order to make a "cursory visual inspection" of
places where an accomplice may be hiding. In
order to do so, the police must have a
reasonable belief that an accomplice may be
around.
Example: 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
you are being taken to jail, police may perform
an "inventory search" of items you have with you
without a warrant. This search may include your
car if it is being held by the police in order
to make a list of all items inside.
- Police
may search without a warrant if they reasonably
fear for their safety or for the public's
safety.
Example: If the police drive past your
house on a regular patrol of the neighborhood
and see you, in your open garage, with ten cases
of dynamite and a blowtorch, they may search
your garage without a warrant.
- If it's
necessary to prevent the imminent destruction of
evidence, the police may search without a
warrant.
Example: If the police see you trying
to burn a stack of money that you stole from a
bank, they may perform a search without a
warrant to prevent you from further destroying
the money.
- Police
may perform a search, without a warrant, if they
are in "hot pursuit" of a suspect who enters a
private dwelling or area after fleeing the scene
of a crime.
Example: If the police are chasing you
from the scene of a murder, and you run into
your apartment in an attempt to get away from
them, they may follow you into the apartment and
search the area without a warrant.
- Police
may perform a pat-down of your outer clothing,
in what is called a "stop and frisk" situation,
as long as they reasonably believe that you may
be concealing a weapon and they fear for their
safety.
What the
Police MAY NOT Do:
- The
police may not perform a warrantless search
anywhere you have a reasonable expectation of
privacy, unless one of the warrant exceptions
applies.
- If
evidence was obtained through an unreasonable or
illegal search, the police may not use it
against you in a trial. This is called the
"exclusionary rule."
- The
police may not use evidence resulting from an
illegal search to find other evidence.
- The
police may not submit an affidavit in support of
obtaining a search warrant if they did not have
a reasonable belief in the truth of the
statements in the affidavit.
- Unless
there is a reasonable suspicion that it contains
evidence, illegal items, or stolen goods, the
police may not search your vehicle. If your car
has been confiscated by the police, however,
they may search it.
- Unless
they have a reasonable suspicion that you are
involved in a criminal activity, the police may
not "stop and frisk" you. If they have a
reasonable suspicion, they may pat down your
outer clothing if they are concerned that you
might be concealing a weapon.
Disclaimer
This
publication and the information included in it are
not intended to serve as a substitute for
consultation with an attorney. Specific legal
issues, concerns and conditions always require the
advice of appropriate legal professionals. |
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