If a police car is following you with its siren blaring or emergency lights flashing, pull over to the right quickly (but safely) and come to a complete stop in a safe place.
Pulling over right away isn't an admission of guilt. It just means that you were alert to everything that was happening around you. Also, by stopping as soon as you can, you’ll have a better chance of figuring out exactly where and how the officer says you violated any traffic laws. This information can be useful should you and a lawyer later need to prepare a defense.
Pull over in a way that will be most likely to calm down an angry or annoyed traffic officer. Use your turn signal to indicate any lane changes from left to right, and slow down fairly quickly, but not so quickly that the officer will have to brake to avoid hitting you. Pull over as far to the right as possible, so that the officer won’t have to worry about being clipped by vehicles in the right lane when coming up to your window.
After you’ve pulled over to a safe spot, you should normally turn off your engine. At this point, you might want to show the officer a few other token courtesies. You have little to lose and perhaps something to gain.
Roll down your window all the way. Put out a cigarette if you have one and discard any chewing gum (within the car). You might also want to place your hands on the steering wheel, and, if it’s dark, turn on your interior light. These actions will tend to allay any fears the officer might have. After all, police officers have been killed in traffic-stop situations, and the officer’s approach to the vehicle is potentially the most dangerous moment.
Your dignity might be offended a little at this point, but remember that you’re just doing a few simple things to put the officer in an optimal frame of mind.
Also, stay in the car until and unless the officer directs you to get out. Finally, don’t start rummaging through your back pocket for your wallet and license, or in your glove compartment for your registration, until the officer asks you for them. For all the officer knows, you could be reaching for a weapon.
As previously noted, you don't want to get out of your car during a traffic stop unless you're told to do so by an officer. But if the officer requests you get out, do you have to comply?
An officer who stops you for an alleged traffic violation has the right to insist that you and your passengers get out of your car. (Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 U.S. 408 (1997).) Clearly, you should get out if asked or instructed to do so. Simply put: You should follow the officer’s directives but begin with the assumption that you should remain in the car. And you should also assume that the officer is on alert, ready to interpret a failure to follow instructions as a threat of danger or an attempt to flee.
In general, a police officer who stops you for a traffic violation is not allowed to search your vehicle. There are several exceptions to this general rule. However, it's important to note that the applicability of these exceptions might depend on the laws of your state.
After pulling you over, an officer will watch for any sort of "furtive movement." A sudden lowering of one or both shoulders, for example, will tip the officer off that you’re attempting to hide something under the seat.
An officer enforcing a traffic stop isn’t looking just for furtive movements. Officers will look for anything incriminating that’s in “plain view” (like open beer or wine bottles, joints, or roach clips). Discovery of one item in plain view often leads to a thorough search that reveals more incriminating or illegal objects.
An officer who has any reason to suspect that you might be dangerous has a right to conduct a quick “pat-down” search of your outer clothing. (Arizona v. Johnson, 555 U.S. 323 (2009).) Upon feeling any weapon-like object during the pat-down, the officer can reach in and get it. The officer can also seize anything during a proper frisk for weapons that obviously feels like contraband.
Also, if the police officer reasonably believes you’re dangerous and might gain control of weapons, the officer can search areas within the passenger compartment in which a weapon could be placed or hidden. (Michigan v. Long, 463 U.S. 1032 (1983).)
If you’re arrested and your car is towed, the police may generally make an “inventory search" afterward, even if they have no reason to suspect there's anything illegal inside.
What if the officer asks to search your cellphone? May you politely decline? The rule is that officers generally may not search cellphones without warrants—or your consent.
Drivers being hostile has led to many a problem with police officers. So too has saying more than necessary.
You should generally let the officer do the talking, responding where appropriate. For example, when asked to hand over your license, registration, and proof of insurance, you should say something like, “Okay,” or, “Sure,” and fork over the documents.
Some lawyers caution that an officer who pulls you over for a traffic violation has decided whether to give you a ticket before approaching your car. (They also acknowledge that rude behavior will sometimes be rewarded with a ticket, though you would have otherwise received a warning.) These lawyers warn that officers will sometimes act as though they might change their minds if you cooperate so that they can get information or an admission out of you.
It can be tough to know exactly what to say to an officer’s queries, but whatever you do, you shouldn’t argue. And you should know that you have a right to remain silent, although you might have to actually say something to invoke that right.
Simple traffic violations often don’t require the assistance of an attorney. More serious accusations—like a charge of driving under the influence or possession of drugs—often do. If you want to know how the law in your state applies to your situation, consult an experienced criminal defense attorney. A knowledgeable lawyer can determine whether there might be a basis for a motion to suppress evidence and otherwise guide you through the process.
]]>Where a typical traffic detention is concerned, officers generally must have reasonable suspicion that the driver or someone in the vehicle is committing or has committed a crime. (Though exceptions, such as sobriety checkpoints, do exist.)
In other words, police generally can't just make a traffic stop because they have a hunch something is amiss. For a traffic stop to be legal, police normally need an objective reason to believe someone has broken the law, though a minor traffic violation is usually enough.
In Delaware v. Prouse, the Supreme Court considered the case of a man prosecuted for marijuana possession. (440 U.S. 648 (1979).) In the course of a traffic stop, the police officer had seen marijuana on the defendant's car floor.
The officer testified that he hadn’t seen the defendant’s vehicle violate any traffic laws before he conducted the detention. He hadn't observed any equipment violations, nor had he witnessed any suspicious activity. He enforced the stop only so that he could check the driver’s license and the vehicle’s registration. He wasn’t acting in accordance with any established guidelines or procedures. The Court held that his kind of “spot check,” left entirely to the police officer’s discretion, is unconstitutional.
Every situation is a little different. In some scenarios, it might be obvious that the police had a reason to pull you over. For instance, if you ran a stop sign or were speeding, you've broken a law and the police are certainly justified in making a traffic stop.
However, in other cases, the reason for a traffic stop might not be so clear and the legalities might be debatable. But, whatever you might think about why an officer pulled you over, there isn't much you can do about it at that moment. Arguing with an officer is typically a bad idea. Anytime you get pulled over, being courteous and compliant with law enforcement is the way to go.
The time and place to dispute the legality of a traffic stop are in court. If you believe you were unlawfully detained by police, get in contact with an attorney who can help you. A qualified attorney can review the police report, assess your case, and let you know if you have any viable argument that the traffic stop was illegal. If a judge agrees that the stop was unlawful, you might be able to get the case thrown out with a motion to suppress evidence or through some other legal avenue.
In terms of a DUI arrest, the original stop might or might not be based on an officer's suspicion of drunk driving. For instance, officers normally pull drivers over when they observe indications of impairment such as swerving or ridiculously slow driving. But in other cases, an officer might stop a motorist for a minor traffic violation (like a stop sign or speeding violation) and notice signs of intoxication (like the odor of alcohol) during the traffic stop. In both situations, the stop is valid, and the officer is allowed to conduct a reasonable DUI investigation.
The legality of the traffic stop is just the first part of the analysis. For a DUI prosecution to be lawful, the driver's arrest must be supported by probable cause. In other words, police need a reasonable basis to believe the motorist was driving under the influence.
In most states, a DUI is defined as being in actual physical control of a vehicle while:
In some cases, the motorist's driving pattern will provide some of an officer's probable cause. And during the stop, the officer might note other symptoms of drug or alcohol use such as:
It's also common for officers to ask drivers to complete field sobriety tests (FSTs) or a roadside breath test. FSTs and prearrest breath tests are typically optional. But if a driver consents, the results are fairly considered in the probable cause determination.
If, on balance, the facts could lead a reasonable person to believe the driver is under the influence, the officer is legally justified in making a DUI arrest.
So, what happens if there was no reasonable suspicion for the stop or probable cause for the arrest? Generally, any evidence obtained subsequent to the illegal police action will be inadmissible in court.
To exclude illegally obtained evidence from consideration at trial, a defendant would normally need to file a motion to suppress evidence in court. A successful motion to suppress can ultimately lead to the dismissal of a DUI charge. (Of course, a motion to suppress is just one of the many ways to fight a DUI charge.)
If you've been arrested or have questions about the legalities of a traffic stop, get in contact with a qualified attorney. An experienced attorney can tell you how the law applies to the facts of your case and help you decide on the best course of action.
]]>Police officers obtain search warrants by convincing a neutral and detached magistrate that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.
The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant.
The police can search only the place described in a warrant and for only the property that the warrant describes. They cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, that doesn't mean that officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can often seize it.
If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, she can only detain and question the onlooker and, if necessary for her safety, conduct a frisk for weapons (but not a full search). (For more on this topic, see below.) (Ybarra v. Illinois, 444 U.S. 85 (1979), Michigan v. Summers, 452 U.S. 692 (1981).)
Many searches occur without warrants. Over the years, courts have defined a number of situations in which a search warrant isn't necessary, either because the search is reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all. (For additional information to what’s below, see our section on Exceptions to the Warrant Requirement.)
What if the person in control of the premises freely and voluntarily agrees to the search? If the police limit their search to whatever the person agreed to, the search will usually be valid. But courts don’t necessarily require that the police ask for permission before searching each and every room or object; they often find that the initial consent was broad enough to justify whatever search the officers conducted, so long as the police officer’s interpretation of the consent was reasonable. For example, if a tenant consents to a search of his or her “house,” a court may determine that a reasonable interpretation of “house” includes rooms, closets, attics, and basements located within the dwelling. On the other hand, a reasonable interpretation of “house” may not include vehicles, backyard storage sheds, detached greenhouses, or any buildings or property located outside the dwelling
Courts consider consent valid if the police reasonably believed that the consenting person had the authority to consent, even if it turned out that he or she didn’t. And officers don’t have to warn people that they have a right to refuse consent to a search. (Florida v. Jimeno, 500 U.S. 248 (1991), Illinois v. Rodriguez, 497 U.S. 177 (1990), Schneckloth v. Bustamonte, 412 U.S. 218 (1973).)
Many disputes about consent have to do with who has the right to consent. If there are two or more tenants in one dwelling, courts often rule that the consent of one is enough for a search of at least some parts of the premises. (See Frazier v. Cupp, 394 U.S. 731 (1969), United States v. Matlock, 415 U.S. 164 (1973), Georgia v. Randolph, 547 U.S. 103 (2006).)
A police officer doesn’t need a warrant to seize contraband or evidence that is "in plain view" if the officer is legitimately in the area where the evidence or contraband is first spotted. (The officer must have probable cause to believe the item is evidence or contraband in order to seize it, though.) So, if an officer who has lawfully pulled you over spots what appears to be cocaine on the passenger seat, he can probably examine it, seize it, and arrest you. (Coolidge v. New Hampshire, 403 U.S. 443 (1971), Arizona v. Hicks, 480 U.S. 321 (1987).)
A police officer doesn’t need a warrant to conduct a search "incident to” an arrest. After a lawful arrest, an officer has the right to search the arrestee and the area within the arrestee’s immediate control. (United States v. Robinson, 414 U.S. 218 (1973).) (For more information, read about cellphone searches after arrest and car searches by police.)
Police may sometimes also make what's known as a "protective sweep" of the premises following an arrest. They can “sweep” if they have reason to suspect that a dangerous accomplice might be hiding in the area in question. Even without that kind of suspicion, they typically may look in spaces immediately next to the area of the arrest that could hold a hidden attacker.
A protective sweep is supposed to be limited to a cursory visual inspection of places where an accomplice might be hiding. For example, police officers can often look under beds and inside closets. If a sweep is lawful, the police can seize contraband or evidence of crime that is in plain view during the sweep. But the sweep must be aimed at protecting the officers, not gathering evidence.
As a general rule, the police are authorized to conduct a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:
In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement. (United States v. Santana, 427 U.S. 38 (1976), Cupp v. Murphy, 412 U.S. 291 (1973).) But not all emergency situations are cut and dry. For instance, the Supreme Court held that "hot pursuit" of someone suspected of a minor crime (such as a noise violation or misdemeanor) won't always justify warrantless entry of a home. (Lange v. California, 594 U.S. __ (2021).)
A police officer may stop someone he reasonably suspects of criminal activity, and he may frisk the person for weapons if he reasonably suspects the person is armed and dangerous. This type of warrantless "search" is known as a Terry frisk. If the stop or frisk leads to probable cause for a full-blown arrest, the officer can conduct a search incident to arrest (above). (Terry v. Ohio, 392 U.S. 1 (1967); for much more on Terry stops and frisks, see our section on detentions by police.)
If you’ve been arrested or charged with a crime, or otherwise want to know how the law applies to your situation, consult an experienced criminal defense lawyer. The law can vary somewhat from state to state, and a knowledgeable lawyer can fully explain it to you.
]]>Although people often agree to police searches when they feel pressured or intimidated, those feelings don’t necessarily mean that the resulting search is illegal. However, officers can go too far in manipulating a suspect, to the point that a court will hold that the suspect's consent was invalid. In that kind of situation, evidence the police find will probably be inadmissible in court.
This article addresses the following questions:
For related reading, see our article on officers getting consent by concealing their identity.
In the following scenario, a court would probably consider the search illegal and suppress the evidence:
Consider this illustration:
The police arrest Susanne on the front porch of her house. They don’t have a warrant, but they nevertheless barge into the actual house and begin to look for evidence. Once inside, they knock on a bedroom door, and Sally, Susanne’s sister and roommate, comes out. They ask if they can take a look around the house, but they also tell Sally that a search warrant is on its way. In reality, the officers haven’t sought a warrant. Sally gives them the okay to search the house, and in one of the rooms, they find evidence incriminating Susanne.
The judge holds that the search of the home was illegal. Not only had the officers already begun searching before they talked to Sally, but they also falsely told her that a warrant authorizing the search was on its way. Consent given under these facts couldn’t be considered voluntary; the circumstances indicated it would be futile for Sally to refuse. (People v. Mullaney, 104 Mich. App. 787 (1981).)
Another, perhaps, more common way officers interact with suspects is by being less than forthcoming about why they want to take a peek in a home. Usually, if officers simply fail to tell a suspect that an inspection could lead to criminal charges, consent will be valid. On the other hand, consent may be no good when officers mislead the person about who or what they’re investigating.
Federal agents have an indication that Bobby might have an illegal firearm. They go to his house; Bobby, who has a prior felony conviction, understands that the agents are there to look for a machine gun. He tells the agents that he has other guns. He lets the officers into the house and shows them several firearms. None is a machine gun. He is later charged with unlawful firearm possession by a convicted felon.
A federal appeals court holds that Bobby's consent was valid. It observes that officers don't have to give an "encyclopedic catalogue" of everything they could be interested in finding in a search. The court also notes that there was no indication that the officers set out with a motive other than to find the machine gun they suspected Bobby had. According to the court, that weapon, rather than Bobby's potential illegal possession of other guns, was their motivation. And they didn’t indicate to him that nothing other than a machine gun could lead to prosecution. The guns are therefore admissible evidence. (United States v. Davis, 749 F.2d 292 (5th Cir. 1985).)
An agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) begins investigating Max. Max reportedly owes money to a suspected firearm trafficker and is selling drugs out of his apartment. The agent surveils Max’s apartment for several months but doesn't see anything that would establish probable cause for a warrant. So, the agent and a colleague knock on Max's door and report that they are there because they have received an anonymous tip that there are drugs and bombs in the apartment. The agents explain that it's a matter of community safety. The primary agent asks if he and his colleague can come in and have a look around. He says, “We're not here to bust you on a bag of weed. ... We have bigger fish to fry than a small bag of weed.” Max, who has a prior felony, gives the agents permission to search the apartment. During the search, they find a loaded handgun in a hole underneath a sink.
The court finds that the search was illegal. It explains that “deception and trickery” are factors that can make consent involuntary. Another factor, the court explains, is whether officers tell a defendant that he or she has a right to refuse consent to a search. (Officers generally aren’t required to advise defendants of the right to refuse, though.) The court ultimately holds that Max could have reasonably believed he and others were in danger because of a bomb. How could he say no to that? His “consent” was therefore involuntary. (United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011).)
Consult an experienced lawyer if you would like an understanding of how the law in your jurisdiction applies to a particular situation. A knowledgeable lawyer will be able to evaluate the circumstances and assess your options.
]]>At the same time, the police are generally allowed to search your home or your stuff if you agree, even if they don’t have probable cause or a warrant. (They're sometimes allowed to search even if they've gotten consent without being completely forthcoming.)
So what happens when someone lets the cops peek inside a home or have a look around only because the officers are pretending not to be cops? Is the search legal?
The answer depends on factors like the extent of the search and the degree of the officers’ deception.
If police officers get into a house by deceiving an occupant into believing they’re something other than police officers, evidence they find inside might be inadmissible in court. (More on that below.) But many courts—even if not all—have said it’s fine for the police to play pretend in order to get you to simply open the front door and talk to them. Consider the following example.
Police officers in Colorado receive an anonymous tip that people are selling drugs out of an apartment. Officers Carver and Hauk go to the apartment to conduct a “knock and talk” with the occupants. Carver stands out of view while Hauk knocks on the front door. After a minute and no answer, Hauk knocks again. Someone inside asks (through the closed door), “Who is it?” Hauk responds, “Maintenance.”
Preston, who lives in the apartment, opens the door. When he does, Officer Carver steps into view and joins Officer Hauk. The officers can see another man, Wallace, inside the apartment, behind Preston. Officer Carver sees a glass pipe on a table inside the apartment. Wallace runs toward the back of the apartment. Carver, who assumes Wallace is either fleeing, destroying evidence, or trying to get a weapon, enters the apartment to pursue.
Officer Hauk pulls Preston to the ground in the doorway to keep him from interfering. When Carver catches up to Wallace out behind the apartment, Wallace drops a knife. Carver finds cocaine in Wallace's pockets.
Before his trial for several drug-related offenses, Preston moves to suppress the evidence found inside the apartment. He argues that the police unlawfully pretended to be maintenance workers and that their deceit led to the entire episode.
The appeals court considering the case explains that there’s a difference between using deceit only to get an occupant to open the door and using it to gain consent to enter the residence. The court observes that the officers used their ruse only to get someone to open the door—not to get someone to allow them inside. The court denies Preston’s motion to suppress. (People v. Nelson, 296 P.3d 177 (Colo. App. 2012).)
Even though entering a house is a greater privacy invasion than getting an occupant to merely open the door, some courts have found it legal for police to go into a home under false pretenses. In other cases, courts have held that officer trickery went too far.
The U.S. Supreme Court, for instance, once sided with law enforcement in a classic case of undercover tactics. The defendant had invited an undercover agent to his home for a drug sale. His only concern was whether the agent was a willing and able buyer. During two visits to the defendant’s home, the agent never saw, heard, or took anything that the defendant didn’t consider. The Court held that the agent’s misrepresentation of his identity didn’t violate the defendant’s Fourth Amendment rights. It held that the drugs the undercover officer purchased were admissible at trial. (Lewis v. United States, 385 U.S. 206 (1966).)
Cases can go the other way, though. For example, in a 1986 Ohio case, two officers visited a fraternity house in order to follow up on complaints about illegal alcohol sales there. One of the officers lied to the fraternity house manager that he was an alum of the house. He said he wanted to take a look on behalf of his brother, who was considering attending the school and joining the house. The manager showed the officers around. One officer saw a soda machine that dispensed beer cans and bought one. Before leaving and getting a search warrant, one of the duo gave the manager a fake name and address.
The state supreme court held that the house manager’s invitation to enter wasn’t “free and voluntary” consent, and that the officers unlawfully entered the house. The court noted that the home wasn’t a “commercial center of criminal activity,” and that the invitation to enter wasn’t “for the purpose of conducting illegal activities.” (State v. Pi Kappa Alpha Fraternity, 23 Ohio St. 3d 141 (1986).)
If you want to understand how the law in your jurisdiction applies to your situation, consult an experienced criminal law attorney. A knowledgeable lawyer will be suited to assessing the precise circumstances of a case.
]]>In some instances, an officer who has stopped a vehicle has a legal justification for searching it. Other times, that justification doesn't exist. For example, if an officer doesn't witness any apparent traffic violation or have any other objective basis for pulling a car over in the first place, any evidence that turns up from a car search will probably be inadmissible in court.
Even when there's a lawful basis for a traffic stop, an officer who issues you a citation can't search you or your car without a basis to suspect that you are armed and dangerous or involved in criminal activity (other than the minor traffic violation).
A 2018 U.S. Supreme Court case—about unauthorized rental car drivers—illustrates the principle that the police can't search a car just because they've stopped it. The practical rule from that case is that police may not search a rental car after a traffic stop based only on the fact that the person driving isn't on the rental agreement. Someone who has permission to use a car from the person who rented the car doesn't lose all Fourth Amendment rights merely by not being on the rental agreement. (Byrd v. U.S., 138 S.Ct. 1518 (2018).)
Despite the rule above, there are plenty of circumstances where officers can search cars they've stopped. Laws in many states authorize police officers to arrest drivers for minor traffic offenses, such as speeding or failure to wear a seatbelt. In these and other arrest situations, the validity of a subsequent search depends on the circumstances.
After arresting an occupant, the police typically may search the passenger compartment of a vehicle if it reasonably appears that the arrestee might access the vehicle during the arrest or that the vehicle contains:
The ensuing search must be limited to areas that might contain the items the searching officer reasonably expects to find.
If, for example, officers have arrested a motorist for driving on a suspended license, handcuffed him, and placed him in a locked patrol car, they don't have a lawful basis to search the car. The driver isn't able to access the car at the time of the search, nor can the officers reasonably expect to find evidence of the crime for which they arrested him: driving on a suspended license. (Arizona v. Gant, 556 U.S. 332 (2009).)
Even without an arrest, an officer who sees, hears, or smells something suspicious during a traffic stop can search the car—without a warrant. For instance, if the officer sees a baggie containing white powder in the back seat, the officer would likely have probable cause that illegal drugs are in the vehicle.
Even where no other justification exists, police can search a car if the driver gives permission. An officer doesn’t have to tell the driver that giving consent is optional, but it's perhaps easier in theory than in practice to say "no" to a police officer.
The trick with consent is that it must have been "freely and voluntarily given" to be legit. Consent that is coerced is invalid, and so is the search that follows. To determine whether consent was voluntary, courts look at all the circumstances of the encounter. (Bumper v. North Carolina, 391 U.S. 543 (1968).)
When police lawfully impound a vehicle, they're allowed to open it and take inventory of the loose contents. It doesn't matter if police don't have probable cause, because an inventory search—at least in theory—isn't designed to gather evidence. Instead, the theory of inventory searches is that when police tow and store a car, they should be able to make a record of what's inside. An inventory search allows them to protect the car's contents. It also allows them to safeguard themselves—against any dangerous items in the car and claims that they stole or mishandled items.
If police run across incriminating evidence during an inventory search, the evidence can typically be used against the defendant.
If you face criminal charges, regardless of whether they stem from a car search, consult an experienced criminal defense attorney. An attorney who knows the law in your jurisdiction will be able to explain the relevant rules, including any exceptions to the general principles discussed in this article.
]]>An officer pulls you over for a minor traffic violation, eventually hands you a ticket, and then has you wait—for a trained dog to sniff your car. Is that legal?
In Rodriguez v. United States, the U.S. Supreme Court held that, unless they have reasonable suspicion of a crime, the police can’t extend a traffic stop in order to conduct a dog sniff. Otherwise, though, officers are generally entitled to use dogs to sniff cars during traffic stops.
On March 27, 2012, at just around midnight (when else?), a Nebraska police officer saw a Mercury Mountaineer “veer slowly onto the shoulder” of a highway “for one or two seconds and then jerk back onto the road.” (Rodriguez v. U.S., 575 U.S. 348 (2015).) Knowing shoulder-driving to be illegal, Officer Struble of the Valley Police Department pulled over the SUV.
Officer Struble happened to be a K-9 officer and have his pooch Floyd riding along. Struble approached the driver and had the usual license/registration/proof-of-insurance exchange with driver Dennys Rodriguez. The officer gathered the paperwork and asked Rodriguez to come with him to the patrol car. Rodriguez asked if he had to, was told he didn’t, and decided to stay in his car with his passenger, a man by the name of Pollman.
Struble ran a records check on Rodriguez and then returned to the SUV and talked to Pollman. He requested the passenger’s driver’s license and questioned him about what the two men were up to. (Pollman explained that they were returning to Norfolk after traveling to look at a for-sale Mustang.)
Struble ran another records check, this one on Pollman. The officer called for a second officer and began writing Rodriguez a warning ticket for the driving violation. He approached the Mountaineer for the third time; he issued and explained the warning to Rodriguez and returned each man’s documents. About 20 minutes had passed from the time of the pull-over.
Here’s where it got interesting—and why the case made it to the highest court. Officer Struble:
During the second trip around, Floyd indicated that the car held drugs. At this point, seven or eight minutes had passed from the point Struble issued the warning ticket. The police then searched and found a big bag of methamphetamine in the vehicle.
The question for the Supreme Court was whether the dog sniff was legal. If not, the methamphetamine—and the drug case against Rodriguez—would have to be tossed.
Here’s what the Court said, by a six-to-three vote.
Police dog sniffs during lawful traffic stops are legal under the Fourth Amendment to the federal constitution (though state constitutions might provide otherwise). (Illinois v. Caballes, 543 U. S. 405 (2005).)
But an officer who doesn’t have reasonable suspicion may not extend a traffic stop in order to conduct a dog sniff. The officer who pulls a driver over may not prolong the detention “beyond the time reasonably required to complete” the stop’s “mission.”
An officer’s traffic-stop mission reasonably includes tasks like checking the driver’s license, registration, and proof of insurance and running a warrant check. But a dog sniff isn’t part of it. Once tasks related to the traffic infraction are or should be complete, the detention must end. The central issue actually isn’t whether the dog sniff happens before or after the ticket had been issued—it’s whether the sniff makes the stop take any longer than it otherwise would.
The Supreme Court sent Rodriguez’s case back down to a lower court to determine whether Officer Struble reasonably suspected criminal activity that would justify the extended detention. But the facts as recited by the Court suggested that he didn’t. In that case, the sniff would have been illegal, and the methamphetamine would be inadmissible in court. Likewise, in any case where the police unnecessarily drag out a roadside detention in order to fetch the K-9, any turned-up evidence will normally be no good. (For exceptions and background on the Fourth Amendment, see Understanding Search-and-Seizure Law.)
]]>The law requires—in most situations—that the police get a warrant in order to gather historical cellphone location information kept by cellphone and wireless network providers. The U.S. Supreme Court established this privacy rule for all the country in the 2018 case Carpenter v. United States. (138 S. Ct. 2206.) But, this ruling addressed technology used in 2011. So where does the law stand on newer technology?
Cellphone and wireless service providers and tech companies (like Google) store certain historical and real-time location data gleaned from cellphone connections with cell towers, GPS satellite tracking, and smart device applications and operating systems. Law enforcement can request this data using a court order or warrant. Some examples of this data include:
Historical CSLI. A typical cellphone produces a time-stamped record every time it connects to a cell site. This record is referred to as “cell-site location information” (CSLI). With CSLI, police can get a really good idea of where someone’s phone has been, allowing them to piece together past events—for instance, connecting the dots as to a suspect’s location at the scene of a crime.
Real-time CSLI. To obtain real-time data, a service provider can either contemporaneously monitor a phone’s CSLI connections or “ping” a user’s cellphone and force it to reveal its location. This real-time data can provides police with information on a suspect’s (phone’s) current whereabouts.
GPS movements. A phone or car’s GPS system tracks its movements using satellite signals. This information might be stored on the phone or vehicle itself or transmitted to a repository. It can also be relayed to police in real time.
Tower dumps: reverse location search. Instead of providing CSLI records on a certain phone number, a tower dump refers to a request for all the CSLI data connected to certain cell towers at a specific time—so every and any phone that connected during that time. Law enforcement can use the data to work backward in identifying or tracking a suspect.
Geofence: reverse location search. A geofence refers to a search of a location history database to identify all users whose devices were in a certain location at a certain time. This data is often available through location tracking applications. Police use the information to increasingly narrow their search parameters (the “geofence”) and try to pinpoint devices that might be connected to the crime—again, working backward to identify a suspect but from a database of user movements that far exceeds a tower dump.
For a typical search warrant, police need to convince a judge that they have probable cause to believe that evidence of a crime will be found in the place or item to be searched. To establish probable cause, an officer must typically submit an affidavit based on reliable sources that identify objectively suspicious activities.
In recent investigations, however, law enforcement has relied on a few different statutory authorities that generally require a lower standard of proof than probable cause. For instance, one statute allows law enforcement to obtain a court order directing access to a company’s stored communications when the officer shows a “reasonable basis” to believe the information is “relevant and material to an ongoing criminal investigation.” (18 U.S.C. § 2703(d).)
In the 2018 case Carpenter v. United States, the Supreme Court found that this lower standard ("reasonable basis" listed above) did not suffice for a request of a month’s worth of historical CSLI data on a defendant’s phone. The Court held the acquisition of these records constituted a Fourth Amendment search and the police needed to get a probable cause warrant. (138 S. Ct. 2206.)
This decision was consistent with the trend suggested by recent decisions dealing with the relationship between technology and privacy. The Court had held in 2012 that the police can’t arbitrarily slap a GPS on a car and track the vehicle’s movements (United States v. Jones, 565 U.S. 400), and in 2014, that officers normally need a warrant to search the cellphone of someone they’ve arrested (Riley v. California, 134 S. Ct. 2473).
We don't yet know what Carpenter means for searches involving newer forms of tracking technology. When the Carpenter ruling was issued, it already lagged behind several advances in tracking and surveillance technologies used by law enforcement. As the case was being decided, police had moved on to obtaining real-time CSLI and reverse location tracking data. On top of that, the Supreme Court was very careful to limit the Carpenter ruling to only historical CSLI data and requests to obtain more than six days’ worth of data. (The Court even noted that emergency situations will likely justify warrantless searches at times.)
Basically, until Congress acts or a case comes before the Supreme Court, lower courts are left to grapple with competing interests of the government and privacy rights of citizens. Several lower courts—both before and after the Carpenter decision—have held that law enforcement must usually obtain probable cause warrants to obtain real-time CSLI. Some state legislatures have also stepped in and enacted laws that require a probable cause search warrant to obtain certain real-time or reverse location data. But without clear guidance, judges must navigate a patchwork of laws and court rulings when issuing search orders or warrants.
Some commentators are confident that lower courts will rely on Carpenter to extend the probable cause warrant requirement to newer data searches that arguably infringe on greater privacy rights. Whereas historical and real-time CSLI searches are often particularized to an identified individual, reverse location searches may look at the whereabouts of hundreds or thousands of individuals—most of whom are not suspected of any wrongdoing. And some question the effectiveness of reverse location searches in general—arguing that such searches are highly prone to errors and shouldn't be used at all.
This area of law is evolving. As courts and legislatures try to catch up to the technology, more cases and statutes will likely emerge. If you have questions regarding your privacy rights, contact a lawyer who specializes in civil rights or criminal defense.
]]>Although the Fourth Amendment to the U.S. Constitution generally requires that officers have warrants before searching homes, the protective sweep doctrine is an exception. And if police discover evidence of criminal activity that is in “plain view” while conducting a protective sweep, the prosecution can typically use that evidence against the defendant at trial.
A typical protective sweep scenario involves officers having an arrest warrant for someone and needing to enter a home to make the arrest. (Protective sweeps can also involve arrests near homes (at the entrance, for example), and arrests in other kinds of buildings.) To guard against unexpected attack from unseen people in the home, the police are typically allowed to perform at least some kind of limited search of other parts of the premises.
(For information on a related topic, see Warrants and the Knock-Notice Rule.)
Courts generally recognize two levels of protective sweeps.
The first kind of prospective sweep involves officers searching closets and other spaces immediately adjoining the location where an arrest takes place—places from which an attack by some concealed person could “immediately be launched.” This type of sweep doesn’t require probable cause or reasonable suspicion that any danger actually exists. (Maryland v. Buie, 494 U.S. 325 (1990).)
Example: Officers Brown and Martinez have an arrest warrant for Billy. They enter his one-bedroom motel room to arrest him. The officers have no information that anyone other than Billy might be in the motel room. As a precaution, though, Officer Brown quickly looks underneath the bed and in the closet while Officer Martinez is arresting and handcuffing Billy. Brown is justified in making his search to protect Martinez and himself from a potential hiding attacker.
The second kind of protective sweep allows officers to take a broader look around the premises, but only if they have reason to believe that there’s an actual danger of attack. In other words, police must be able to point to facts that would lead a “reasonably prudent” officer to believe that the area to be swept actually harbors someone posing a threat. (Maryland v. Buie, supra.)
Example: Officers Lee and Howard have an arrest warrant for Loraine for armed robbery. The local probation department has told the officers that two high-risk, violent offenders just released from jail live with Loraine in her five-bedroom home. When Officers Lee and Howard enter the home, they arrest Loraine in the living room and hear people shuffling around in the back bedrooms. Loraine tells the officers no one else is home with her. After making the arrest, Officers Lee and Howard go into the back bedrooms, where they find drugs and one of the roommates with a gun. The officers were justified in “sweeping” the back bedrooms, and the drug and gun evidence will be admissible in court.
Because protective sweep searches are for the safety of officers and others—not the gathering of evidence—they must be limited, in time and scope. A lawful protective sweep isn’t a full search, but rather a “cursory inspection” of the places where a person could be hiding. (Maryland v. Buie, supra.)
Place. During a protective sweep, officers may look only in areas where a person could be hiding.
Time. Protective sweeps generally must be quick. The search can last only as long as it takes to dispel the risk of danger, and no longer than it takes to arrest the subject and leave the premises.
In deciding whether a protective sweep was reasonable, courts tend to look at the “totality of the circumstances”—in other words, all the relevant factors. The following are some of the factors courts have considered:
Most state and federal courts have extended the protective sweep rule beyond cases involving arrest. A number of courts have applied the rule to cases where someone consents to the police entering a portion of a home, and officers find it necessary to sweep other parts of the home for purposes of safety. Courts have also applied the protective sweep rule to probation searches and searches conducted pursuant to search warrants. The minority of state and federal courts have interpreted the rule as only applying when an arrest is actually made by officers.
The legality of a protective sweep depends heavily on the facts. And courts differ somewhat in their approach to the issue. As the section above shows, protective sweep law may vary at least slightly between states. You should always rely for legal advice on an attorney with experience in your locale.
]]>Among the parts of the Bill of Rights that apply to the states are:
The states also have their own constitutions, which in many respects overlap with the federal Constitution and its amendments. But state constitutions cannot limit the individual freedoms provided by the Bill of Rights—they can only expand them. Put another way, “the federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.” (Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992).)
]]>Motions to suppress evidence are most common in Fourth Amendment, search-and-seizure cases. Defendants can file them in other contexts, too—for example, where eyewitness identification is involved. A defendant might argue that the identification procedure was so unfair that the judge should bar the prosecution from mentioning its results at trial.
Example: Wallace and Poot are walking down the street. They aren’t behaving suspiciously, and the police don’t have any reason to suspect that they’ve recently committed a crime. Nevertheless, Officers Carver and Haulk pull up alongside them in a car. They order Wallace and Poot to stop, then jump out of the car and frisk both. Officer Carver finds an "eight-ball" of cocaine in Wallace’s jacket pocket. The prosecution charges Wallace with drug possession. Wallace’s lawyer files a motion to suppress the cocaine evidence. The judge grants the motion due to the fact that the officers didn’t have reasonable suspicion for the detention of Wallace and Poot, nor any basis to search them. Since the prosecution can’t prove the crime without the evidence, it moves to dismiss charges; the judge grants the motion. (See What’s the difference between an arrest and a detention or “stop and frisk”?)
For information on the potential fallout of losing a motion to suppress, see If I lose my motion to suppress and plead guilty, can I appeal?
]]>Legal Protections Can Vary
Though many critical rights come from the U.S. Constitution, states have their own constitutions and statutes. State law often provides protections that are similar, if not identical, to the those the federal Constitution gives. But occasionally state law offers expanded rights. Keep this potential expansion in mind when reading about general criminal law principles. It could be, for example, that evidence that would be admissible under the federal Constitution is inadmissible under state law.
For more on fundamental rights as they relate to the federal Constitution and state law, see What does the Bill of Rights do?
The Court’s reasoning in U.S. v. Leon was that it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements. In addition, the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge. If a judge makes a mistake, excluding the evidence wouldn’t serve any deterrent purpose.
For example, assume that a judge decides that an affidavit submitted by a police officer establishes probable cause to issue a warrant. Even if a reviewing court later disagrees and decides that the warrant shouldn’t have been issued in the first place, the officer’s search in good-faith reliance on the warrant will be considered valid, and whatever the search turns up will be admissible in evidence. If, however, the warrant is issued on the basis of statements in the affidavit that the police knew to be untrue or made recklessly without proper regard for their truth, the evidence from a search based on the warrant may later be excluded. In this situation, the evidence would be excluded based on the police officer’s actions, not an error by the judge.
Example: Officer Furlong searches a residence for evidence of illegal bookmaking pursuant to a search warrant. The officer obtained the warrant by submitting an affidavit containing statements the officer knew to be false. The search is not valid because the police did not act in good faith. Officer Furlong used a false affidavit to obtain the warrant. Whatever the search turns up would not be admissible in evidence.
Example: Officer Cal Ebrate stops a motorist for a traffic violation. A computer check of the driver’s license reveals an arrest warrant for the driver. Officer Ebrate places the driver under arrest, searches the car, and finds illegal drugs. It later turns out that the computer record was wrong, and that no arrest warrant actually existed. Here, the officer acted in good-faith reliance on the computer record. Thus, the arrest and search were proper and the drugs are admissible in evidence against the driver, even though the record was wrong (Arizona v. Evans, U.S. Sup. Ct. 1995; Herring v. U.S., U.S. Sup. Ct. 2009).
]]>When carrying out a search warrant, police officers can take reasonable steps to protect themselves, such as handcuffing occupants while searching a house for weapons and evidence of gang membership. (Muehler v. Mena, 544 U.S. 93 (2005).)
Police officers obtain warrants by providing a judge or magistrate with information that they have gathered. Usually, the police provide the information in the form of written statements under oath—called “affidavits”—that report either their own observations or those of private citizens or police informants. In many areas, a judicial officer is available 24 hours a day to issue warrants.
A magistrate who believes that an affidavit establishes “probable cause” to conduct a search will issue a warrant. The person connected with the place to be searched isn’t present when the warrant is issued and therefore cannot contest whether there is probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion.
Police officers can, in appropriate circumstances, get what’s called an “anticipatory search warrant.” This is a warrant based probable cause that, at some future time—but not now—evidence of a crime will be at a specific location. For example, if the police demonstrate to a magistrate that illegal drugs are about to be shipped to a suspect’s home, they can get a warrant that allows them to search the home once the drugs are delivered. (United States v. Grubbs, 547 U.S. 90 (2006).)
The Fourth Amendment doesn’t define “probable cause.” It’s clear though that an affidavit a police officer submits to a judge when applying for a warrant has to identify objectively suspicious activities. It can’t simply recite the officer’s subjective beliefs. An affidavit has to establish more than a bare suspicion that criminal activity is afoot, but it doesn’t have to show proof beyond a reasonable doubt.
In general, when deciding whether to issue a search warrant, a judge or magistrate may well consider information in an affidavit reliable if it comes from any of these sources:
Example: Hoping to obtain a warrant to search Olive Martini’s backyard, a police officer submits an affidavit to a magistrate. The affidavit states that “the undersigned is informed that Olive operates an illegal still in her backyard.” The magistrate should not issue a search warrant based on this affidavit. Because the affidavit is too vague and the source of the information is unstated, there’s no way for the magistrate to evaluate its reliability. The affidavit doesn’t establish probable cause.
Example: Same case. The affidavit states, “I am a social acquaintance of Olive Martini. On three occasions in the past two weeks, I have attended parties at Martini’s house. On each occasion, I have personally observed Martini serving alcohol from a still in Martini’s backyard. I have personally tasted the drink and know it to be alcoholic. I had no connection to the police when I attended these parties.” This affidavit is reliable enough to establish probable cause for issuance of a warrant authorizing the police to search Martini’s backyard. The affidavit provides detailed, firsthand information from an ordinary witness (without police connections) that indicates criminal activity is taking place.
Search and seizure law can vary somewhat from one jurisdiction to another. And it, along with so much of the law, can be very complex. To understand the law as it applies to you, consult an experienced criminal defense lawyer.
For further reading on when officers need search warrants and what they may—and may not—do when executing them, see Search Warrants: How They Work and When Officers Need Them.
]]>Courts generally start with the presumption that any search of a home without a warrant is unreasonable. And evidence from unreasonable searches is generally inadmissible in court. But, as with almost all legal rules, there are exceptions to the home-warrant requirement. One exception involves consent: The police normally don’t need a warrant in order to inspect a home when someone who appears to have authority to allow them to search lets them search.
When the owner of a home agrees to the police searching the premises, the search will, in all likelihood, be legal. The question of whether a home search is legitimate gets a little trickier when someone other than an owner consents to the exploration.
Even occupants who have less than full rights over the premises can, through consent, give police the legal justification they need to search parts of a residence. For example, a roommate can give consent that allows the police to search her room, the living room, and the kitchen. But if she doesn’t have access to or control over her roommate’s separate bedroom, she can’t provide proper authorization for the police to search it.
A person who doesn’t live in a home but who uses and has joint access to or control over parts of it can authorize the police to search those parts. But someone who is a mere guest generally doesn’t have authority to let the police snoop around. The question is whether police officers reasonably believe that someone who provides consent has normal access to and use of the parts of the house to be searched.
Whether the police are allowed to search a home after receiving permission from a child who lives in the house depends on the circumstances. To determine whether a child's consent is valid, a court might consider factors like the kid’s age and how much use of the premises the youngster appears to have.
In one case, a court determined that the police were reasonable in assuming that a 15-year-old had enough control over an apartment she lived in in order to let them search it. The court pointed out that:
(Rajappa v. State, 200 Ga. App. 372 (1991).)
But even when a child has authority to agree to a home search, the police probably can’t use consent to search everything. For instance, officers would likely be going too far by searching a locked trunk that the child doesn’t have a key to. (People v. Cooney, 235 Cal. App. 3d Supp. 1 (1991).)
Usually, consent to search a home that a housekeeper gives is invalid. For example, an Illinois court upheld a ruling suppressing evidence police found in a home after the housekeeper gave them the green light. The court agreed that the search was unlawful because the officers knew that:
(People v. Keith M., 255 Ill. App. 3d 1071 (1993).)
Of course, if the housekeeper lives in the home and authorizes the police to search only those parts of it that he or she has access to, then the search might be legitimate. In general, the more authority over the home someone like a housekeeper (a live-in babysitter, for example) has, the more likely it is that the person's consent will be valid.
If your home has been searched by the police and you face criminal charges, talk to an experienced criminal defense attorney. A knowledgeable lawyer will be able to advise you about the law in your jurisdiction and your specific case.
]]>Officers can't just barge into any hotel room without a warrant, nor can they get past the warrant requirement by asking the hotel's permission to search. Indeed, hotels and motels typically don’t have the authority to let the police search the room of a registered guest without a warrant. (Stoner v. State of Cal., 376 U.S. 483 (1964).)
In an Ohio case, for example, a hotel housekeeper entered a room that her records listed as occupied but that appeared to be vacant. (State v. Miller, 77 Ohio App. 3d 305 (1991).) She began to inspect it, and in the process found cocaine. She called the police and gave the responding officer some of the drugs, leaving the rest in the room. Officers later searched the room, finding the remaining cocaine.
The appellate court ruled that, as a product of a search by a citizen, the cocaine the housekeeper gave the officer was admissible in court. But it ordered the suppression of the remaining drugs, finding that the housekeeper’s “speculative mistaken belief” that the room was unoccupied didn’t supply a legitimate basis for officers to search it. Rather, they should have asked hotel management whether the room was rented, then sought a warrant if necessary. That’s because hotel employees typically cannot give valid consent to the search of a rented room unless the occupant has authorized them to.
The rule that hotel personnel can’t consent to the search of their patrons’ rooms does, of course, have exceptions. For example, if a renter has abandoned the room or stayed beyond the rental period, then the consent of a hotel employee can provide a legitimate basis for a room search.
Another rule, which is an exception for emergencies, can also allow officers to enter homes or hotel rooms without a warrant or anyone's consent. (It and related rules can go by names like “the exigent-circumstances exception” and “the emergency-aid doctrine.”) The theory is that the police shouldn’t have to wait to get a warrant when there is some crisis that requires their immediate intervention.
An example of this kind of emergency exception is a New Jersey case where the police were responding to a report of an armed robbery at a casino hotel. The Supreme Court of New Jersey determined that the police reasonably believed that a victim might have been incapacitated in a hotel room or that a gunman might have been hiding there. So, the court said, officers were justified in entering and conducting a limited search of the room without a warrant. The handgun in plain view that they saw in the room was therefore admissible in evidence. (State v. Hathaway, 222 N.J. 453 (2015).)
]]>The police can, of course, enter and search an apartment with a properly issued warrant. But officers are normally not allowed to search the home of a renter just because the landlord consents. The theory is that the apartment is, after all, the renter’s. (For related reading, see our article on who can let the police search your home.)
Circumstances do arise, however, where a landlord is legally authorized to allow the police to enter or search an apartment or apartment building. The police don’t need a warrant to enter an apartment, for instance, when there’s an emergency. Landlords may also let officers search some parts of an apartment complex other than the apartments themselves.
In one New York case, for instance, an appeals court said it was fine that the police entered the hallway outside the suspect’s apartment. The court ruled that way because the building’s landlord let the police in, and she had enough “authority and control over the premises” to do so. (People v. Wells, 532 N.Y.S.2d 877 (1988).)
If the landlord agrees, the police are usually within their rights to search an apartment that a renter has vacated. And they can typically search an apartment from which a renter has been evicted.
In one California case, for instance, a property manager told the police that tenants were being evicted for being late on their rent. She told the police that, while she was moving the tenants’ property out, she found drugs. She let the police into the apartment, and the officers seized the drugs. The issue in the case was whether evidence of the drugs was allowed in court. The court held that the evidence was indeed admissible. It explained that a landlord who has taken “actual possession” of the premises has authority to consent to a police search. (The court also said that the search was okay because the officers acted on the reasonable belief that the consent to search was valid because the apartment had been repossessed.) (People v. Superior Court, 3 Cal. App. 3d 648 (1970).)
How far the landlord and tenant are in the eviction process is a critical factor in evaluating the legitimacy of a landlord's consent to search. For example, in one case, a landlord orally told her tenants that they would be evicted by a particular date unless they got completely caught up on rent. On the date in question, she entered the apartment to clean it, found a sawed-off shotgun, summoned the police, and let them search the premises. State law required the landlord to give written notice of eviction, which she hadn’t done. The court determined that the tenants hadn’t actually been evicted, and that therefore the landlord didn’t have authority to consent to the search of the apartment. (United States v. Botelho, 360 F. Supp. 620, 622 (D. Haw. 1973).)
As with so many legal issues, the law in your state will control the circumstances that create a valid eviction and allow the landlord to consent to a search of the premises.
]]>Generally, the closer one is to the border, the less one is entitled to travel freely and the more one can expect stops, questions, and even searches by customs officials.
(Note: Federal law typically decides border-search issues, but state law can sometimes come into play.)
To learn about detention, questioning, and searches at the actual border or its “functional equivalent,” see When can officials, stop, question, and search travelers at the U.S. border?
The rules that govern stops and searches at the actual border (or its equivalent) differ somewhat from those that apply near the border. In short, customs officials are held to a higher standard at immigration stops along inland routes within 100 miles of the U.S. border. Such stops include detentions:
Despite the higher standard, U.S. Customs and Border Protection (CBP) officials (“customs officials”) have authority for certain warrantless detentions and searches in these situations. (At least one court has held that the authority applies even beyond 100 miles from the border, where officials have reasonable suspicion.)
In these removed-from-the-border settings, CBP must use the least restrictive type of stop structure that still allows them to determine travelers’ immigration statuses. For example, roving patrols are less restrictive than checkpoints because patrolling officials can stop only cars about which they have individualized suspicion. If a road is sparsely populated, therefore, roving patrols should be deployed rather than checkpoints; it’s not impractical for roving officials to develop individualized suspicion when there are few cars on the road. (U.S. v. Vasquez-Guerrero, 554 F. 2d 917 (9th Cir. 1977); U.S. v. Sandoval-Ruano, 436 F. Supp. 734 (S.D. Cal. 1977).)
The law on searches and seizures at and near the U.S. border is constantly evolving. And it’s complex, to say the least. So, if you have a question about your rights or need advice, make sure to consult an attorney experienced in this area.
]]>One month after the coordinated attacks on September 11, 2001, Congress greatly enhanced the powers of the nation’s intelligence agencies and removed certain legal constraints on surveillance. On October 11, 2001, Congress passed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”), which (among many other things) loosened the restrictions on how and how much personal information about citizens and non-citizens the government could seek.
The intelligence-gathering restrictions were originally put in place to prevent intelligence agencies and law enforcement from using broader anti-terrorism surveillance laws to conduct criminal investigations and thereby do an end-run around the constitutional constraints that protect criminal suspects.
To a great extent, the restrictions arose in response to the different standards for intelligence surveillance/searches and searches in criminal investigations. For the issuance of an intelligence surveillance warrant for electronic monitoring (“wiretap”), the government had only to show probable cause that the target was “the agent of a foreign power.” By contrast, the standard for a criminal wiretap is probable cause that the target is committing a particular and identified criminal offense. Before the enactment of the Patriot Act, courts drew a distinction between intelligence warrants and criminal warrants. The reason for this distinction was to prevent the FBI or other agencies from using an intelligence warrant to fish for evidence of criminal offenses (instead of obtaining criminal search warrants, which would have required a higher showing of probable cause).
The Patriot Act effectively destroyed that distinction, by allowing warrants to be issued where evidence sought in an “authorized investigation” is a “significant purpose” of the warrant, but not necessarily the only purpose. Under the Act, warrants can be issued for both intelligence and criminal investigations. In short, the Patriot Act allows criminal surveillance of U.S. citizens without the heightened showing of probable cause that is required for a criminal search warrant under the Constitution. Of course, the government must have some grounds for asserting that the target of such a surveillance/search the subject of an authorized investigation, but in practice the government need not offer much to the special court set up to issue such warrants. In some instances, federal and local authorities have conducted surveillance of individuals attending services at mosques.
As many of us learned after former government contractor Edward Snowden released intelligence documents, U.S. intelligence agencies monitor virtually all electronic communication and collect so-called “metadata” (such as email addresses, phone numbers, time, and duration of calls) from service providers. Under the Patriot Act, the restrictions on surveillance of internet and telephone communications are even looser than other types of surveillance.
When the government launches an investigation under the more relaxed rules of the Patriot Act, agents may turn up evidence of activity that violates state or federal criminal laws but is not terrorism. How might this play out for a person who breaks the law but is not trying to bring down the U.S.?
Imagine this scenario: Petra Googles “ammonium nitrate fertilizer.” Then she searches for a distributor and buys twenty 50-pound bags over the internet. Petra also emails Jared, a member of an “off-the-grid” community. Jared happens to write what he calls an “anarchist’s blog” calling for an end to legal regulation of drugs. Petra’s search for and purchase of fertilizer gets the attention of an FBI agent who obtains a warrant based on his on-going investigation of home-grown terrorist cells.
The agent uses the warrant to search all of Petra’s email records, where he discovers the communication with Jared. The agent also gets a warrant to examine Petra’s bank records and notices a large influx of cash in recent months. All of this leads to Petra’s arrest and the discovery by law enforcement that, while Petra is no terrorist, she is a marijuana farmer with a few prime acres in Mendocino County, California, where Jared sold her a solar-powered timer for her sprinkler system. Without the initial internet surveillance, Petra might not have hit the radar of local law enforcement (the Mendocino sheriff has an ambivalent attitude toward growers who don’t cause problems). But, thanks to the Patriot Act, Petra is going to jail.
But, the Patriot Act does not limit broad government’s searches to electronic data; it also literally opens your front door to the FBI.
Under the 4th Amendment to the Constitution, the government cannot search your home without a warrant obtained from a court after a presentation of its probable cause that you are involved in a criminal activity. Under the Patriot Act, the government can search your home without that warrant so long as it leaves “notice” that it was there.
If a citizen has donated to an organization that the government considers to be affiliated with a possible terrorist organization, an FBI agent may take a stroll through his abode while he’s away, leaving a calling card at some point to notify him of the search. While the agent is there, she may notice that the homeowner has what may be child pornography (photos of his child frolicking naked in a kiddy pool). The agent could use that evidence to expand her investigation and try to seize other materials, such as the homeowner’s computer, to search for more illicit material. She may even examine his local library records to see what books he’s checked out (woe to him if he re-read Lolita recently).
The Patriot Act can vastly complicate a criminal case and even affect how the defendant’s attorney is allowed to represent the defendant. If you have questions about the Patriot Act, talk to a criminal defense attorney with experience in defending such matters.
]]>The Fourth Amendment protects against unreasonable searches and seizure. But the U.S. Supreme Court has said that in certain circumstances it’s reasonable—and therefore legal—for police to search passengers and their things.
As a general rule, police are supposed to have a warrant before they conduct any search. But there are lots of exceptions to this warrant rule.
A search of a vehicle is one such exception—often called the “automobile exception.” To inspect the interior of a car, the police usually need probable cause to believe they’ll find incriminating evidence inside—not a warrant.
("Inventory searches" are another exception to the warrant rule that could apply to passenger searches.)
Once the police have probable cause, everything inside the car that could conceal the item they’re looking for is fair game. For example, imagine police have probable cause to look for drugs and find a backpack in a car. It doesn’t matter whom the backpack belongs to (passenger or driver)—the officers may look inside the bag because it could contain drugs.
Example: Officer Colombo pulls a car over for making an illegal left turn. Inside the car are four teenagers. Colombo notices a hypodermic syringe—that, upon further inspection, he observes contains traces of drugs—in the driver’s shirt pocket. Colombo orders everyone out of the car, frisks them, and begins to search the car for drugs. The officer picks up a purse from the back seat; one of the passengers identifies it as hers. Officer Colombo opens the purse, finds drugs inside, and places the purse’s owner under arrest. The arrest and drug seizure were valid. Because Officer Colombo had the right to search the car for drugs, he also had the right to search items belonging to passengers that could reasonably contain drugs. (Wyoming v. Houghton, 526 U.S. 295 (1999).)
Example: Officer Colombo pulls a car over for making an illegal left turn. Inside the car are four teenagers. The officer notices an illegal automatic weapon sticking out under the front passenger seat. Colombo orders all the occupants out of the car, frisks them, and begins to search the car for other weapons. He picks up a wallet from the back seat; one of the passengers identifies it as his. Officer Colombo carefully searches the wallet and finds drugs inside. He places the wallet’s owner under arrest. This seizure and arrest for drug possession are probably not valid. Because Officer Colombo had the right to search the car for weapons-related evidence, he also had the right to search property belonging to passengers that could reasonably contain weapons. Because no weapon could be concealed in the wallet, the search of the wallet was arguably illegal and the arrest based on it invalid.
Having probable cause to search a vehicle doesn’t automatically give police the right to search a passenger’s person or clothing. But some circumstances do allow police to search passengers. For instance, an officer who legally arrests a passenger can then search the person “incident to arrest.” Police are also allowed to pat down (or frisk) a passenger they reasonably suspect is armed and dangerous. (U.S. v. Di Re, 332 U.S. 581 (1948); U.S. v. Robinson, 414 U.S. 218 (1973); Arizona v. Johnson, 555 U.S. 323 (2009).)
Search-and-seizure law is complicated and frequently changes. It’s also possible that your state’s law provides greater protection than the federal law discussed in this article. So, if you’ve been arrested, get in touch with an experienced criminal defense attorney.
]]>The exclusionary rule applies to evidence that's a direct product of a constitutional violation. It also comes into play when such a violation leads less directly to incriminating evidence.
Suppose officers, without reasonable suspicion or probable cause, stop a man walking down the street. Though he’s done nothing to deserve it, they search him. They find in his pocket a scrap of paper saying, “Drugs are under garbage bin at 123 Jones Street.” The officers go to the address, peek under the garbage bin they see there, and find a bag of various narcotics. Both the note and the drugs were a product of an illegal stop and search, so neither will be admissible to prove the man’s guilt.
EVIDENCE NOT ALWAYS INADMISSIBLE
The exclusionary rule generally requires that evidence that results from an unlawful detention or arrest be excluded from court. But not always.
Suppose a warrant is out for your arrest. An officer who’s unaware of the warrant detains you, but not because you were doing anything wrong. Maybe the officer is speculating that you’re up to no good. Whatever the reason, it’s not reason enough: The policeperson doesn’t have reasonable suspicion that you have committed or are committing a crime.
The officer asks for your identification, has dispatch run a check, and learns about the warrant. The cop arrests and searches you, finding some kind of contraband in your pockets.
Even though the stop was illegal because it wasn’t based on reasonable suspicion, the contraband could very well be admissible against you in court. The U.S. Supreme Court has held, essentially, that arrest warrants can retroactively justify illegal detentions. (For much more on the rules in this area, see this article on the “attenuation doctrine.”)
For more information on the exclusionary rule, including exceptions, see Fruit of the Poisonous Tree and Police Searches and the Good Faith Exception. Also see Statements Obtained When Police Violate Miranda.
]]>The U.S. Supreme Court sets the basic rules on search and seizure through interpretation of the Fourth Amendment, which protects against unreasonable government intrusion. But since it takes so long for a case to get all the way to the Supreme Court, search-and-seizure law relating to new technology often remains uncertain for many years.
Uncertainty about cellphone searches prevailed until June of 2014, when the U.S. Supreme Court held that police officers generally need warrants to search the cellphones of arrestees. (Riley v. California, 573 U.S. 373 (2014).)
After an arrest, officers are allowed to search people and any containers on or immediately around them. But lower courts across the country couldn’t agree as to whether this kind of search reasonably extended to cellphones. Some said that mobile phone searches required warrants, while others said they didn't.
Ultimately, the Supreme Court found that a cellphone is entirely unlike a typical container—for instance, a cigarette pack. Sure, both might contain evidence, but that evidence is physical in one instance and digital in the other. And the digital evidence that cellphones hold is both vast and tremendously personal. Today's smartphones hold anything from bank and medical records to intimate text messages to data that tracks the owner's location.
Plus, as the Court explained, data revealed by a cellphone may not actually be stored on it. With cloud computing, the information might actually live on a remote server. The fact that cellphones may not even "contain" the information they display is another way in which the cigarette-pack analogy falls short.
Prosecutors expressed a series of objections to the requirement that officers obtain warrants before searching arrestees' cellphones. They mentioned "remote wiping," by which a third party could delete a phone's data after police officers take it, or by which the data might erase if the phone enters or exits a particular geographic area. They also discussed data encryption, which makes information nearly impossible to get to without a password. They even invoked extreme scenarios, as where a phone has the location of an about-to-explode bomb or a missing child.
First, to the extent that a cellphone might be usable as a weapon, the Supreme Court said that officers can search it without a warrant—for example, they can retrieve a razor blade hidden between the phone and its case. Second, officers can probably take "preventive measures" to avoid the loss of a phone's data. Without delving into it, they could turn off the phone, place it in a bag that protects against radio waves, or disable its automatic encryption lock, for example. Third, with today's technology, it may take officers as little as 15 minutes to get a warrant that authorizes a search. And fourth, officers can dig into the phone when there's an emergency.
The "exigent circumstances" doctrine allows officers to act without warrants when the circumstances are severe. For example, if the officers have reason to believe that they can do nothing to stop the loss of a phone's data and must search it now or never, they likely can do so. They certainly can go into the phone if there's a basis to suspect that it can help them avert a disaster involving a ticking bomb or missing child.
The Supreme Court's 2014 decision established that cellphones are most like homes, which police officers need warrants to search. If anything, Chief Justice Roberts wrote, a contemporary cellphone—with its immense storage capacity—contains more private, sensitive information than a house. So, officers who plan to search cellphones will usually have to get court approval before having at it.
]]>Many people don’t realize that they don’t have to consent to a search, and the badge and gun certainly don’t make it easy to say no. When you consent to a search, law enforcement can search as much as you consented to, whether that’s searching your person, home, car, or stuff. The prosecution can typically use whatever the officers find as evidence against you in a trial. If you’ve already consented, changing your mind is an option if you act clearly and quickly. (Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Oyortiz, 669 F.3d 439 (4th Cir. 2012).)
Typically, if you withdraw your consent to a search that’s underway, the officer must stop searching immediately. You must be very clear that you are withdrawing your consent. You can indicate intent to withdraw by making a clear, unambiguous statement or by taking some clear, physical action. (U.S. v. Ross, 263 F.3d 844 (8th Cir. 2001).)
While there are no set words you must use, “I am withdrawing my consent to this search” will probably do the trick. Something like “That’s enough; I want you to stop” may also work. On the other hand, merely expressing disapproval of the search or stating the search is an inconvenience or taking too long probably won’t be clear enough to show your intent for the search to stop. (U.S. v. Gray, 369 F.3d 1024 (8th Cir. 2004).)
It’s sometimes possible to withdraw consent by physical action. In some states, pushing an officer’s hands away or blocking an officer’s hands can be enough to indicate you’re withdrawing consent. For instance, someone might push the officer’s hands away from her pockets or box of cigarettes. (Take note that using any degree of force in interacting with an officer can lead to big trouble—and could be considered resisting arrest.) A similar way to withdraw consent might be attempting to retrieve the item being searched. Completely blocking an officer's path or locking a door might also suffice.
Be aware, however, that not all courts may consider such actions an adequate indication of intent to withdraw consent. Also, getting “physical” with an officer can lead to arrest and even use of force by the officer. In general, it’s best to use one's words. (Lowery v. State, 894 So.2d 1032 (Fla. Dist. Ct. App. 2005).)
In addition to being free to withdraw consent for a search, you can also limit a search to particular items or places. But you must generally make a statement that clearly and unambiguously indicates your intent to limit the search. If you make clear that you are consenting to a search for drugs only, for example, the officer probably cannot start reading papers (clearly not drugs) found during the search. Or you can indicate that you are consenting only to a search of your house and not to the garage or shed. (U.S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971).)
There are situations where you probably cannot withdraw your consent to a search.
Evidence found. Not surprisingly, it’s typically too late to withdraw your consent after an officer has found something incriminating. Whatever the officer finds legally before you withdraw that consent can be used against you.
Airport screening. Once you’ve started the process of being screened at airport security, even if the screeners haven’t yet found anything incriminating, you typically cannot withdraw consent. (U.S. v. Herzbrun, 723 F. 2d 773 (11th Cir. 1984).)
Prison visitation. As in the airport-screening situation, you generally cannot withdraw your consent to a search once you’ve begun the process of being searched before a prison visit, where visitors are informed beforehand that they will be searched. (U.S v. Spriggs, 827 F. Supp. 372 (1993).)
Even when it comes to search-and-seizure cases, the law may vary somewhat from one state to another. For example, even though the U.S. Constitution sets the “floor” for basic freedoms, one state’s constitution may provide broader protections. A criminal defense attorney can help you understand the law and how it applies to your situation.
]]>Generally speaking, the prosecution can’t use evidence that comes directly from police illegality—the seized object or the statement. But oftentimes, it also can’t use evidence that derives from the illegality—something the officers discovered as a result of the object or statement. The latter is commonly referred to as the “fruit of the poisonous tree.”
Fruit of the poisonous tree includes evidence gathered from just about any kind of police conduct that violates a defendant’s constitutional rights.
Take an illegal wiretap, for example. Suppose the police begin to listen in on and record the statements of suspected drug dealers without first getting a warrant. One of the dealers says that he left some cocaine in an abandoned warehouse so that his buyer could pick it up. The police go to the building and find the drugs. Not only is the illegally recorded statement (the poisonous tree) inadmissible, but so are the drugs the officers found (the fruit of that tree).
In a case that developed the concept of "fruit of the poisonous tree," Wong Sun v. U.S., the prosecution introduced drugs into evidence against the defendant. Federal officers had learned about the drugs from a witness they knew about only because of a statement by the defendant during an illegal arrest. The Supreme Court ruled that everything the officers discovered as a result of the illegal arrest was fruit of the poisonous tree—not just the statement itself but also the witness information they gleaned from it and the actual drugs that the witness led them to. (371 U.S. 471 (1963).)
The U.S. Supreme Court has held that even a confession that comes after the Miranda warnings may be inadmissible if it's the product of an illegal arrest and police misconduct and the confession and illegal arrest are closely related. (Brown v. Illinois, 422 U.S. 590 (1975).)
There are exceptions to the fruit-of-the-poisonous-tree doctrine, meaning that some evidence may be admissible even though police came by it illegally.
Courts use the terms “inevitable discovery” and “attenuated taint” to describe situations in which the government finds evidence illegally but could have found it lawfully. In those instances, the evidence may be admissible. (For another way to get illegally obtained evidence into court, see Is illegally seized evidence admissible to attack a defendant’s credibility?)
Consider again the wiretapping example. Immediately after the officers go to the warehouse and snatch the drugs, the police hear from a reliable informant, who reports the cocaine and its location. The court finds that the informant’s tip would have provided enough information for a lawfully issued warrant to search the warehouse. In many places, a court would probably admit the drugs into evidence because the officers could—and presumably would—have found them without the illegal wiretap.
Another example of the "attenuation doctrine" occurs when an officer doesn't have a legitimate reason to stop someone but discovers that the person stopped has an outstanding arrest warrant. If the officer arrests and searches the person, there's a good chance that any evidence the officer finds will be admissible in court.
Another important exception to the fruit-of-the-poisonous-tree rule involves statements by defendants. If officers beat a statement out of a defendant, both the statement and evidence it leads to are inadmissible. But if the defendant gives a statement voluntarily, albeit without the requisite Miranda warning, evidence the police locate because of that statement can come in at trial. It doesn’t matter that the statement itself is inadmissible—the poisoned fruit is nevertheless edible. (For more on Miranda and its exceptions, see When Police Violate the Miranda Rule and Exceptions to the Miranda Rule.)
Just like most legal concepts, the fruit-of-the-poisonous-tree doctrine is complex, with nuances and exceptions. If you face criminal charges, consult an experienced criminal defense attorney. An experienced lawyer can protect your rights and zealously defend you.
]]>But, as a matter of logistics, it can be difficult to shield a backyard from outside viewers. And the public’s ability to see into your yard is a factor supporting officers’ legal authority to search it without a warrant. For example, a police officer who is in a publicly accessible place but can easily see something incriminating in your yard can probably cite that evidence in support of a warrant to search your home (and yard).
Consider the following example, which illustrates the limits on the extent to which the government can snoop around your property.
Police officers receive a tip from a confidential informant that Emilio has just stolen some anhydrous ammonia, which is often used to manufacture methamphetamine. They discover that there is a warrant outstanding for his arrest, so they go looking for him. They eventually go to the home of his known associate, Jesse, late at night.
When the officers arrive at Jesse’s home, they see Emilio’s car in the driveway. They get out of their patrol car and walk down the side of the house, all away around to the back. There are no lights on, so the officers use flashlights. They notice several “no trespassing” signs on the property, which is bordered by a wooded area (other than the front of the house, which has a road leading to it). There’s no fence.
The officers observe a shed and a mobile home in the backyard. They begin to walk between the mobile home and the shed, when suddenly the shed door swings open and Jesse runs out. The officers order him to the ground, and he complies. The door to the shed is now open such that the officers can see Emilio, various jars and glasses containing liquids, and a hot plate inside. The officers order Emilio out. After he exits the shed, they take a glance inside to see if anyone is still in it. They see a methamphetamine manufacturing setup and take photographs of it. A couple officers leave to get a warrant, then come back with it, at which point all the officers search the entire residence. They find more incriminating evidence.
In his prosecution for methamphetamine manufacturing, Jesse moves to suppress all the evidence the police officers gathered. The court grants the motion on the following grounds:
Jesse therefore had a reasonable expectation of privacy in his backyard. (State v. Kruse, 306 S.W.3d 603, 611 (Mo. Ct. App. 2010).)
]]>Officers can enter a home without permission, either with or without force, only after they have been refused entry or waited a sufficient amount of time without receiving a response. But, as with many legal rules, there are exceptions.
Under the knock-and-announce rule, police officers must generally announce themselves and either explicitly or implicitly request entrance into a home. (An implicit request might take the form of, “Police—we’re here to execute a search warrant!”)
But courts aren’t sticklers when it comes to what officers must communicate. As long as officers take reasonable measures to broadcast their presence, judges are likely to find that they satisfied the notice requirement. That’s true even if those inside the home didn’t hear and were otherwise unaware of the officers’ request for admittance. (United States v. Thompson, 667 F. Supp. 2d 758 (S.D. Ohio 2009).)
In most instances, officers can’t legally knock on a front door and yell, “Police—open up!” while simultaneously battering their way through it. They have to wait. How long, you ask? As with almost all legal questions, the answer depends. In fact, if the circumstances are pressing enough, they might not have to wait at all.
Courts generally require that law enforcement wait a “reasonable” period of time between knock-announcement and barging into a home. But what’s reasonable to one officer or judge might be unreasonable to another. Further complicating the issue is the U.S. Supreme Court’s watering down of the requirement.
In Hudson v. Michigan, the Supreme Court observed that officers don't need to knock and announce if there is a threat of violence or reason to believe providing notice will inspire occupants to destroy evidence. The Court commented that the showing that officers must make to justify ignoring the knock-and-announce rule “is not high.” The result is a general perception that courts rubberstamp forcible residential entry by law enforcement. (547 U.S. 586 (2006).)
That perception isn’t baseless, but courts actually do, from time to time, find that officers have unjustifiably violated the knock-notice rule. For example, in a 2010 opinion, an Indiana appellate court determined that the circumstances weren’t sufficiently “exigent” (urgent) for the police to have impatiently barged their way into a residence to execute a search warrant. The prosecution argued that the criminal records of the occupants justified the officers ramming open the front door and declaring themselves only as they were entering. The court disagreed, and it found it appropriate to suppress (exclude) the evidence the officers found after busting into the home. (Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010).)
The Supreme Court has held that knock-and-announce violations don’t require suppression of evidence that officers find after entering a home. The Court reasoned that the purposes of the knock-and-announce rule—such as physical safety, property preservation, privacy, and dignity—“have nothing to do with the seizure of the evidence.” Accordingly, it decided that the federal Constitution allows the government to use in court evidence obtained after a knock-notice violation. (Hudson v. Michigan.)
But that isn’t the end of the story. State laws and constitutions can provide more personal liberty and privacy protection than their federal counterparts. The result is some state courts finding that judges must suppress evidence after an illegal unauthorized entry. That was the ruling in the above Indiana case. It’s also what an Alaska appellate court found when certain officers had “seriously” violated the knock-and-announce rule. In that case, police officers knocked on the door of the defendant’s hotel room for 20 or more seconds without announcing their identity. They then used a hotel key to open the door and enter. They identified themselves as police officers as they were entering but didn’t disclose their purpose, which was to serve an arrest warrant. The appeals court ruled that the drugs the officers subsequently found were inadmissible in court. (Berumen v. State, 182 P.3d 635, 636 (Alaska Ct. App. 2008).)
Ultimately, courts vary at least somewhat in their interpretation of the knock-notice rule. And whether a judge will hold that a violation requires evidence suppression depends on the jurisdiction.
As noted above, officers don't need to knock and announce if providing notice would be dangerous for officers or likely result in the destruction of evidence. Sometimes officers don't become aware of those kinds of circumstances until arriving at the suspect's door. In that situation, exigent circumstances (described above) can excuse them from knocking and announcing before entering.
Other times, an officer might anticipate the danger of harm or evidence loss before going to a suspect's home and therefore ask a judge for a "no-knock warrant." In this situation, the officer is essentially asking for pre-approval to enter without announcing. Many states allow judges to issue these no-knock warrants in appropriate circumstances. Judges considering this type of warrant typically require proof that the police have a reasonable suspicion that announcing would be dangerous or result in the destruction of evidence.
No-knock warrants have gained public awareness, especially in the context of raids involving SWAT teams or paramilitary units. But even smaller raids can result in serious property damage and, worse, physical harm or death of suspects, officers, or innocent citizens. That kind of fallout has led to controversy regarding whether no-knock warrants actually increase safety.
Some argue that no-knock warrants increase officer safety by allowing for the element of surprise. But others argue the element of surprise can cause a suspect or innocent citizen who might have reacted calmly (or more calmly) to a knock and announce to instead react violently.
No-knock warrants also face scrutiny for their impact on people's constitutional rights, based on the arguments that no-knock warrants are used disproportionately against minorities, that the standard of proof to obtain a no-knock warrant is too low, and that the risk of entering the wrong residence is too high.
If you are a suspect in a criminal investigation or have questions about your Fourth Amendment rights, speak to a criminal defense attorney. For questions about a possible claim for violation of your rights, you might want to speak with an attorney who specializes in civil rights or personal injury lawsuits against the police.
]]>Police officers are allowed to search an impounded vehicle to conduct an “inventory search.” An inventory search doesn’t require a warrant or probable cause, because it isn’t supposed to be a search for evidence of a crime. Courts have upheld inventory searches on the theory that the police should be able to search the car to protect the owner from theft of any items in it, and to protect themselves from any claims of theft. (Officers can prove what was and was not in the vehicle when they took control of it by creating an inventory.) Another reason courts have allowed inventory searches is police protection: Officers should be free to search for anything in the car that could endanger them, such as weapons or explosives.
How thoroughly can the police search an impounded car? It depends on the jurisdiction. In some states police officers can search every nook and cranny of the car, while in others a brief sweep for items is all that’s permitted. In almost all states officers can take inventory of any object in plain view—that is, any object readily apparent to the naked eye.
If the police impound your car and find evidence of a crime in it, you may want to contest the search; if you win, the evidence won’t be admissible in court. But, winning this argument can be tough. You will have to prove that the officers acted unreasonably or in bad faith, such as by purposely breaking the law to impound or search your vehicle. Honest mistakes by officers aren’t enough to win an illegal inventory search argument.
The following are situations in which courts have found inventory searches illegal:
(For related information, see Can a private business search your stuff and then turn it over to the police? This article mentions the fact that the law in some states may provide greater protection against private-party searches.)
Many cases over the years have defined what constitutes an illegal search by law enforcement. But, in some ways, there’s really no such thing as an “illegal” search by a private citizen, at least in the sense that police searches can be illegal: Regardless of issues like lack of probable cause, evidence found by private citizens acting on their own is usually admissible in court. That’s true even if the private citizen committed a crime like trespass or theft to accomplish the search. (Regardless of the admissibility of evidence, though, the citizen will be liable for any crime committed in the course of the search.)
Because the exclusionary rule applies to government conduct, evidence from a search by a private citizen who acted on behalf of law enforcement, but without probable cause, is usually inadmissible. For example, if the police don’t have probable cause but employ an informant to look through someone’s bag, a judge will likely suppress any evidence of the contents.
Although police officers sometimes seek the help of private citizens, many professions that appear to be “law enforcement” aren’t. For example, courts typically don’t consider security guards employed by private businesses to be government agents. The same goes for private investigators and bounty hunters, who operate from profit motive rather than to assist a government investigation. Even off-duty police officers employed as private security aren’t government agents for Fourth Amendment purposes.
The admissibility of evidence found by a private citizen usually turns on the government’s “share” of the search. In other words, how involved was the government? While cases where the government ordered or paid a citizen to conduct the search are fairly straightforward, others aren’t. In determining whether to admit the evidence in question, courts consider questions like:
The defendant seeking to exclude the evidence bears the burden of proving by a preponderance of the evidence (a more-likely-than-not standard) that the private citizen acted as an agent of the government. (U.S. v. Feffer, 831 F.2d 734 (7th Cir. 1987).)
Example: Paul, a security guard at the local mall, thinks Mandy, a shopper, looks a little suspicious. When she sets her purse down and starts talking on her cellphone, he takes the opportunity to search it. He notices a bag of heroin. Paul flags down a police officer, who arrests Mandy and takes the heroin as evidence. Before her trial, Mandy’s attorney files a motion to suppress the evidence, but because Paul found the heroin on his own initiative, the court denies it. If the police officer had told Paul to search Mandy’s purse, the result would have been different.
If you’ve been arrested or prosecuted due to evidence found by a private citizen, seek the help of an experienced criminal defense attorney. A knowledgeable attorney will be able to advise you of the applicable law and protect your rights.
]]>If police officers have probable cause, they can typically arrest and search suspects who've committed minor offenses that usually result in citations rather than arrests. (Virginia v. Moore, U.S. Sup. Ct. 2009.)
Example: Police Officer Leigh issues Miller a traffic ticket for driving with a broken tail light. After noticing that Miller’s driver’s license is suspended, Leigh arrests Miller, even though the law authorized him only to cite and release her. Leigh searches Miller incident to the arrest and finds illegal drugs in her purse. He refers the case to the prosecution with an additional charge of possession of illegal drugs. Leigh probably had the right to arrest and search Miller. Because Leigh had probable cause to make an arrest, the search is likely constitutional even though Leigh could have issued a citation to Miller rather than arrest her.
An officer cannot search your dwelling or car when you're arrested elsewhere, such as on the street or at the mall. To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that the police may search the arrested person and the area within that person’s immediate control. For example, an arresting officer can often search not only a suspect’s clothes, but also his or her wallet or purse. (Chimel v. California, U.S. Sup. Ct. 1969; see Cellphone Searches After Arrest.)
Example: Officer Montoya arrests Sarah for driving under the influence of illegal drugs. Before taking Sarah to jail, Montoya takes Sarah’s key and enters her apartment. Inside, Officer Montoya finds a number of computers. He checks their serial numbers and finds out that they have been stolen. Officer Montoya seizes the computers as evidence and adds possession of stolen property to the charges against Sarah. The computers are not admissible in evidence. The officer didn't have a warrant allowing him to enter Sarah’s apartment. Because Officer Montoya had no right to be inside the house in the first place, it doesn’t matter that the computers were in plain view once he was inside.
When officers arrest someone outside the home and have no basis for making a protective sweep, they may offer to let the suspect go inside to get a change of clothes or feed a pet before heading to jail. This offer may be an attempt to expand the scope of a search. While accompanying the suspect inside the residence, officers can seize whatever may be in plain view (for instance, drugs). Thus, many suspects refuse this kind of invitation, and instead rely on their friends if they need clothes or pet care.
]]>But what is a judge to do when the actions were improper, but the motive wasn’t? For example, what happens when a police officer finds cocaine on someone he reasonably—but mistakenly—believes to be subject to arrest and search?
The U.S. Supreme Court introduced the good faith exception for situations like these, where there appears to be a lawful basis for a search, but isn’t. This exception often comes into play when officers reasonably rely on search warrants that turn out to be invalid.
(For information on the effect of an officer's misunderstanding of the law, see Police Detentions Based on Mistakes of Fact and Mistakes of Law.)
The good faith exception ostensibly requires that all members of law enforcement who are involved in a search behave properly. If, for instance, one officer fudges the facts in an application for a search warrant that would’ve otherwise been insufficient and another conducts a search in reasonable reliance on it, the good faith exception doesn’t apply. Likewise, if the warrant, on its face, is vague enough to lead a reasonable police officer to believe it’s invalid, evidence found pursuant to it will be inadmissible.
But courts tend to rule in favor of good faith. The exception usually applies, for instance, where police employees have made errors in maintenance of warrant databases, leading officers to search the wrong people. Courts also invoke good faith when officers rely on law that later changes. For example, if officers attach a GPS to a car without a warrant because existing law allows them to, but a later Supreme Court decision holds that warrants are required, evidence found pursuant to the GPS search will probably be admitted. (U.S. v. Sparks, 711 F.3d 58, 68 (1st Cir. 2013).)
Courts reason that the purpose of the exclusionary rule—to deter officers from misbehaving—isn’t served by keeping out evidence when cops have behaved honestly and reasonably. Of course, critics assert that no matter the reason for a law enforcement mistake, citizens shouldn’t bear the brunt of it. ("Aren't we otherwise sanctioning law enforcement incompetence?") Further, they suspect that officers carry out searches under the auspices of good faith, but with the true intention of circumventing the Constitution.
Some states, interpreting their own laws rather than the federal Constitution, choose not to apply the good faith exception. Some resort to it only under limited circumstances, while others flatly reject it. (The U.S. Constitution sets a minimum standard for protecting individual liberty—states are free to provide more protection pursuant to their own constitutions.)
If you face charges related to evidence officers obtained through a search (with or without a warrant), ask your attorney about the exclusionary rule. A knowledgeable criminal defense attorney will be able to explain the applicable law in your jurisdiction and analyze any potential attempts by the prosecution to invoke good faith or another search exception.
]]>The Fourth Amendment to the U.S. Constitution reads as follows:
"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."
The search-and-seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.
The flip side is that the Fourth Amendment does permit searches and seizures that are reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of you, your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the amendment offers no protection because there are, by definition, no privacy issues.
Courts generally use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:
For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy), and most people—including judges—would consider that expectation to be objectively reasonable. Therefore, the installation of a hidden video camera by the police in a public restroom would be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.
On the other hand, if an officer stops a car and, when talking to the driver, happens to notice a weapon on the passenger seat, there's been no search under the Fourth Amendment. That's because, even if the driver somehow considered the passenger seat to be a private place, society isn't willing to extend privacy protections to that particular location. In other words, there's no objectively reasonable expectation of privacy with respect to the gun because it was in plain view.
A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head. The Court held that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., 529 U.S. 334 (2000).)
If it turns out the police conducted an illegal search, does that mean the criminal case is over? Not necessarily, but consequences do exist.
If, upon review, a court finds that an unreasonable search occurred, any evidence seized as a result of it cannot be used as direct evidence against the defendant in a criminal prosecution. This principle, established by the U.S. Supreme Court in 1961, has come to be known as the exclusionary rule.
To this day, many commentators criticize the exclusionary rule on the ground that it unfairly "lets the criminal go free because the constable has erred." But the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police are less likely to conduct improper searches if the resulting evidence can't be used to convict the defendant. (There are, however, exceptions to the exclusionary rule—for one, see Police Searches and the Good Faith Exception.)
Not only is evidence that's the product of an illegal search generally inadmissible in court, but so too is additional evidence derived from the initial evidence. This principle is colorfully known as the "fruit of the poisonous tree" doctrine. The "tree" is the evidence that the police illegally seized in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are typically inadmissible at trial. (For more, see Fruit of the Poisonous Tree.)
Some defendants believe that if they can show that a search was illegal, the case must be dismissed. Not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. Also, the illegally-seized evidence can generally be considered by a judge when deciding on an appropriate sentence following conviction and admitted in civil and deportation cases. In some circumstances, a prosecutor can use such evidence to impeach (attack the credibility of) a defendant who testifies at trial.
To learn more about search-and-seizure law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo). If you might need to talk to a criminal defense attorney or want to know how the law may differ slightly in your state, you can turn to Nolo's trusted Lawyer Directory to find a lawyer near you.
]]>Generally, if someone with control over the property agrees to a police search request, the subsequent search is probably legal. Someone with “control” over the property includes a resident of the home, but not someone who is clearly a momentary visitor. However, consent has its limits when it comes from only one of two or more parties having control over the home.
(Keep in mind that, even though rules tend to be pretty consistent throughout the country, the law in the jurisdiction will control in any case.)
The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant typically isn’t needed. For example, if college students Jenna and Brian share an apartment and the police ask to enter when only Jenna is home, her consent is all that’s needed to make their entry legal. (We'll discuss how much of the home police can search in the next section.)
But the outcome is different if another occupant is home and objects to the search. If two occupants are present, the police usually can't search the residence if either one objects. Physical presence is key, however: The Supreme Court confirmed in 2014 that the objecting occupant must be present in order to prevent the search. In our example, Brian's objection would stop the search but he must be home to voice his objection. (Georgia v. Randolph, 547 U. S. 103 (2006); Fernandez v. California, 571 U.S. 292 (2014).)
Example 1: Wallace and Bodie share an apartment as roommates. The police, responding to a neighbor’s noise complaint, knock on the apartment door. Only Wallace is home. When he answers the door, the officers ask him whether they can come in and look around. He says yes. Even though Bodie isn’t around and hasn’t consented, the police are authorized to come in and have a look.
Example 2: The police knock on the door and Wallace answers. This time, however, Bodie is home. He hears Wallace, who agrees to let the officers in, talking to them. He rushes to the door and tells the officers, “You can’t come in. I don’t consent to you entering my home.” The officers aren’t allowed to come into the apartment.
Example 3: After speaking with Wallace and Bodie and determining that they can’t search the apartment, the officers leave. Two hours later, they come back and knock again. Bodie has stepped out of the apartment since they were last there, so Wallace is the only one home. He consents to the officers coming in and taking a look. Even though Bodie had been present and recently objected to a police search, the officers are now entitled to look around.
Assuming they have the consent of the only roommate who is present, the police may normally inspect all parts of the home that he or she uses. So, they can search any part of the premises the consenting party occupies (such as that person’s private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.
The police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access to and authority over it. To return to our example of Jenna and Brian, the police would not have authority to search Brian’s bedroom if that room were his alone and not one Jenna had use of.
When only one roommate is around and grants consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the occupants are simply roommates or co-tenants and the one talking to the police doesn’t have permission to use or access another’s bedroom, then that bedroom is off-limits. On the other hand, if Jenna and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.
As with almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is who actually has access to and uses what in the home.
For related issues, check out the following:
]]>Privacy concerns are at their highest when police officers seek to enter a person's home. This means that except in emergency (called "exigent" in criminal law) circumstances, police officers must obtain search or arrest warrants before entering suspects' dwellings. (To learn more about the plain view doctrine and other exceptions to the search warrant requirement, see Search Warrants: What They Are and When They're Necessary.)
Below are examples of emergencies that may justify a warrantless entry into a home.
Example: Police officers are in hot pursuit of an armed robbery suspect. If the suspect runs into a dwelling, the police can follow and arrest the suspect. (But had the suspect run a stop sign and fled into his garage, the police would likely need a warrant to enter the home because the suspected crime is minor and doesn't justify a warrantless entry.)
Example: A police officer walking by an apartment house hears loud screaming coming from one of the apartments. In order to prevent injuries, the officer can use force if necessary to enter the dwelling without having to obtain a warrant first.
In order to gather information to support an application for a search warrant, law enforcement officers are typically allowed to take aerial photographs or come close enough to overhear conversations. However, they probably cannot use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations (unless, of course, they already have obtained a warrant or qualify for one of the warrant exceptions).
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and it tells the owner that a judge has decided that it is reasonably likely that certain contraband or evidence of criminal activities will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search—and why a warrant wasn't obtained first—if the defendant challenges it in court.
A judge will issue a search warrant if the police provide enough information to show that:
The police usually provide information that is (1) based either on the officers' own observations, or (2) based on the secondhand observations of an informant.
If providing secondhand information, the police generally must convince the judge that it is "reliable." Usually, this means that the information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine.
However, corroboration of secondhand information is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
To learn more about search warrants, see Search Warrants: What They Are and When They're Necessary.
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom, or bedroom.
But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
No. In many situations, police may legally conduct a search without first obtaining a warrant. Here are some of the main exceptions (to learn more about these exceptions, see Search Warrants: What They Are and When They're Necessary):
The person in charge of the premises can generally allow police to search your apartment. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. However, if the police can point to circumstances that would justify immediate entry—such as the sound of a ferocious fight—they may enter without permission from anyone.
Yes. The police are allowed to conduct a thorough search of an impounded car, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally or if the police recover your car after it is stolen.
The police are required, however, to follow fair and standardized procedures when they search your car, and may not stop you and impound your car simply to perform a search.
A police investigation constitutes a search if it intrudes on a person's "legitimate expectation of privacy." Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
If the answer to either of the above questions is "no," then the investigation is not a "search." (To learn more about what constitutes a legitimate expectation of privacy, see Understanding Search-and-Seizure Law.)
Broad Definition of "Border"
Customs or immigration officials may conduct warrantless searches without probable cause not only at borders, but at their "functional equivalents," such as international airports. Essentially, neither citizens nor noncitizens have Fourth Amendment rights in these situations.
Permanent Checkpoints
Border officials may stop motorists at fixed checkpoints that are reasonably located relative to the border, to question motorists even in the absence of reasonable suspicion of a crime, let alone probable cause. (United States v. Martinez-Fuerte, 428 U.S. 543 (1976).)
Roving Patrols
Officials on roving patrol generally need reasonable suspicion before they can stop a car.
Getting Professional Help
Whether the stop and search in your case was valid will depend on the facts and this complex, evolving body of law. You'll need the help of an experienced criminal defense attorney to know where you case falls within the "valid-not-valid" spectrum of cases.