Search-and-Seizure Basics

Learn which searches are protected by the Fourth Amendment, and what happens for your case if a search is ruled illegal.

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Although the Fourth Amendment protects your privacy, the police may override your privacy concerns and conduct a search of your home, barn, garage, car, boat, office, personal or business documents, bank account records, trash can, or other possessions, if:

  • the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
  • the search is proper without a warrant because of the particular circumstances.

Not All Searches Are Protected

As framed by the U.S. Supreme Court, the Fourth Amendment comes into play only if the defendant has a “legitimate expectation of privacy” in the place or thing searched (Katz v. U.S., U.S. Sup. Ct. 1967). If not, then no search occurred for the purpose of Fourth Amendment protection. If, however, a defendant did have a reasonable expectation of privacy, then a search did occur, and the search must have been reasonable to comply with the Fourth Amendment.

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, the defendant had a legitimate expectation of privacy in the place or things searched:

  • Did the person subjectively (actually) expect some degree of privacy?
  • Is the person’s expectation objectively reasonable, that is, one that society is willing to recognize?

Only when the answer to both questions is “yes” will a court go on to consider the ultimate question: Was the search reason­able or unreasonable?

For example, a person who uses a public restroom expects not to be spied upon (the person has a subjective expectation of privacy) and most people—including judges and juries—would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, if the police install a hidden video camera in a public restroom, it will be considered a search and would be subject to the Fourth Amendment’s requirement of reasonableness.

On the other hand, when the police find a weapon on the front seat of a car, it is not a search for Fourth Amendment purposes. It’s very unlikely that the person would think that the front seat of the car is a private place (so there’s probably no subjective expectation of privacy), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy exists).

How Illegal Searches Affect Criminal Cases

In Mapp v. Ohio (1961), the Supreme Court established what has come to be known as the “exclusionary rule.” This rule provides that items seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution, state or federal. To this day, some commentators continue to criticize the Mapp case on the ground that it unfairly “lets the criminal go free because the constable has erred.” In recent years, the U.S. Supreme Court has appeared to agree with these commentators by deciding that improperly seized evidence is admissible at trial when the police officers who carry out the searches act on information that they believe to be correct (see Herring v. U.S., U.S. Sup. Ct. 2009). Other important exceptions exist as well. (See Police Searches and the Good Faith Exception.)

Read more about exceptions to keeping illegally seized evidence out of evidence at Illegal Searches.

Challenging a Search in Court

Defendants who believe that the police conducted an illegal search will want to challenge the search in court, to argue that what turned up should not be admitted at trial. Unless the search is obviously illegal, the overwhelming majority of defendants will need the help of a criminal defense attorney. The rules that determine the legitimacy of searches and seizures are not only complex, but also hard to find. They aren’t set out neatly in statutes or regulations. Rather, arguments that a search is illegal usually have to be pieced together from a number of appellate court decisions involving similar facts. Moreover, in many states, a special body of rules governs the procedures for challenging the legality of a search. For example, a defendant may have to challenge a search in a special proceeding before trial or lose the right to do so.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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