YOUR RIGHT NOT TO BE SEARCHED
Nov. 17, 2015
I have, in my short time as an attorney, received a number of questions about when an officer can search a person's home (or office, or car, etc.). There is actually a lot of case laws on the issue, but the Constitution says:
"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."
Seems straight forward enough, right? You can't be searched or seized unless somebody has a warrant, right? And you can't get a warrant unless they have a good reason to get one, right? And they have to be specific in what they are having searched.... right?
Whew, well only kinda. In a general sense, it is true that you cannot be "searched" or "seized" without "probable cause." The problem is, and what the courts have struggled with since our inception has been, when is someone "seized?" When are they "searched?" And what, for the love of god, is "probable cause?"
In 1967 the Supreme Court of the United States told us that a search happens when the government violates a person's reasonable expectation of privacy. So, in your house, you have a reasonable expectation of privacy. In your car... you kinda do. In your office, you have less than your home but more than you have on a bus. If it is in a locked drawer you probably don't expect people to get in there. If you have it up on a wall where your clients can see it, you probably don't expect that to be private. This idea of privacy has been expanded to not being tracked by GPS and was recently applied when a drug dog sniffed the door to someone's home (that was a search).
A seizure (legally, not medically) occurs when someone has been "detained." Just getting stopped on the road is not enough to be considered detained. But, if a reasonable person believes that they could not leave the interaction then they are being detained. The police need to have a good reason to stop you, and just because you don't answer a question or you refuse to stop and listen to them, is not enough to detain you. You don't have an obligation to speak to the police unless the court tells you to. The police can't arrest you because you don't tell them who you are. They can't take you into custody because they think something "looks wrong."
There are a few exceptions to this, DUI checkpoints are an example as are immigration checkpoints as well. The police can't make you answer questions or take a breathalyzer, but they can stop you and check your ID, registration, and your insurance. You are under no obligation to say anything to them and I would strongly discourage you from doing so. And don't consent to field sobriety tests, whatever you do.
If the police have "probable cause" they can get a warrant or, depending on the circumstances, conduct a limited search. If you are placed under arrest they can search you or the area you are in (to make sure you don't have a gun or a friend waiting to blast them with a hand cannon like in Pulp Fiction). ANYTHING they find during this protective sweep is admissible in court. Probable cause means that the police have information that a reasonably prudent person would believe and that indicates someone committed a crime. This is a standard that is so broad that it's hard to address in this kind of a format.
The last couple things I want to talk about are consent and "Plain View." If you consent to a search, the police can get whatever they find. For what its worth, don't ever consent to a search, it will never, ever, ever, ever, ever, ever, ever help.
"Plain View" means that if somebody walking by could see the thing you don't want the cops to see, then too bad. If you have a pile of cocaine in the backyard behind a chain link fence then you have lost your right to "privacy" in your home. If the police can be there legally, and then the see it, you are out of luck chuck.
Hopefully, this information is useful to you. If you have any questions or need any assistance, please give me a call.
Good luck out there.