What is an unreasonable search or seizure?

Americans are protected from unreasonable search and seizure under the 4th Amendment. An unreasonable search and seizure is legally defined as a search performed without the consent of the defendant or without a warrant. There are some exceptions, including the exclusionary rule and the good faith exception, and these exceptions can vary with state law. Call the number above to speak with an attorney for free about your state’s search and seizure laws.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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According to the 4th Amendment of the U.S. Constitution, all persons have a right to be secure in their persons, houses, papers, and effects against unreasonable search and seizure. The U.S. Constitution authorizes limited searches to the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons).

When a defendant is arrested, the process for determining whether the search or seizure of property was reasonable will usually include a discussion on (1) whether there was actually a search or seizure, (2) whether the search or seizure was unreasonable, and (3) whether some exception would apply to the unreasonable search or seizure requirement that made the search and seizure legal.

Absent some exception, a search or seizure with or without a warrant not based on probable cause is presumed unreasonable.

Are consensual encounters considered search and seizures?

Many people assume that all encounters with the police officers or law enforcement officers involve a search or seizure. However, some encounters with law enforcement are “consensual encounters.” The Supreme Court will not apply search and seizure laws to encounters that are deemed consensual.

For example, several years ago, law enforcement boarded buses at stations and asked people for permission to search their belongings for contraband. The Supreme Court held that this event was a consensual encounter, not a seizure.

Other examples of ‘consensual searches’ include a police officer asking to talk to someone at a shopping center or at their home. If a defendant consents to the encounter, then the courts will usually approve any subsequent actions which result in the discovery of evidence.

What is considered consensual will depend on the circumstances surrounding the exchange between the person and the police. If an officer states or indicates through actions that a defendant cannot leave or abandon the conversation, then the encounter is not consensual.

Wearing a gun is not enough to deem a search unreasonable. However, wearing a gun combined with an assertion of authority could turn a consensual encounter into a seizure.

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How is an unreasonable search and seizure proven?

Once a defendant demonstrates that they were subject to a nonconsensual search or seizure, a court must then decide whether or not the search or seizure was reasonable.

What is considered reasonable generally depends on the surrounding circumstances. However, the Supreme Court has outlined general guidelines for different types of privacy interests which include a person’s home, a person’s body, and a person’s car.

Each of these privacy interests, home, person, and automobile, falls under the Fourth Amendment, but different interests are governed by separate standards of reasonableness. A person has a very high and reasonable expectation of privacy in their home, while the degree of privacy a person should reasonably expect in their car is less.

For example, the odor of marijuana coming from inside a vehicle will generally justify the warrantless search and seizure of an automobile, but the same odor coming from a home, without more, will not justify warrantless searches. Instead, law enforcement must obtain a warrant.

A warrantless search may be lawful if an officer is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search and there is exigent circumstance requesting the warrantless search. The U.S. Fourth Amendment states that an arrest warrant is preferred but not required to make a lawful arrest. A warrantless arrest may be justified where probable cause and urgent need are present before the arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the suspect based on the facts and information.

Homes tend to get more protection than automobiles because they are a person’s domain. Everyone has a reasonable expectation of privacy in their own home. Absent some emergency situation or consent, law enforcement must obtain a warrant based on probable cause to enter someone’s home.

What are probable cause and search warrants?

Probable cause is usually recorded in the form of an affidavit. The affidavit sets forth facts and details that would lead a judge to believe that there is a fair probability that evidence of contraband or evidence of a crime will be found in a particular place.

Essentially, the officer must present some proof to the magistrate or judge that an offense has been committed and that it’s reasonable to believe that evidence of that crime will be found at the location to be searched.

A basic search warrant must describe the place to be searched, the address or location, the basis of the search, and what items the officer may look for. The search warrant is a procedural safeguard for a person’s privacy in their home. If the affidavit in support of a warrant is defective because it fails to establish probable cause, then the subsequent search can be declared unreasonable.

Automobiles and exigent circumstances

Automobiles get far less protection because they are mobile, under a theory called exigent circumstances. Essentially, law enforcement is given more latitude because cars are on public roadways and are subject to being moved much more easily. Most automobile encounters begin with a traffic stop. A traffic stop is usually called investigative detention. Only reasonable suspicion is required to seize a vehicle for a traffic violation. This means that the officer does not have to know that a traffic offense has actually occurred, but rather has a good basis for believing that a violation has occurred.

For example, if a defendant was traveling with no license plate on the rear bumper area, but instead had temporary plates displayed behind heavily tinted windows, they technically are displaying a rear license plate.

However, if the officer missed the temporary tags because of the heavy tinting, then the stop would still be valid detention because the officer has a suspicion that there was a traffic violation based on reasonable facts. Once the vehicle is stopped, an officer’s search of the vehicle will be considered reasonable if he can articulate facts that demonstrate probable cause that an offense has been or is about to be committed.

Under the exigent circumstances exception, the officer is not required to obtain a warrant. Factors to support the probable cause can be developed by anything that the officer sees in plain view, anything that he hears from the defendant or any passengers, or anything that he smells near the vehicle.

Plain view means anything the officer can see through the window or a car door when either has been opened by a defendant or a passenger. For example, if a passenger opens a car door and the officer observes a small baggie of methamphetamine on the floorboard, then the officer has probable cause to search the vehicle for other contraband.

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Pat downs

Ironically, the reasonableness of searches involving a person’s body has been greeted by the Supreme Court with mixed emotions. Terry v. Ohio was the landmark case that set out the rules for how and when an officer’s physical pat-down of a person is reasonable.

In order to conduct a limited, outside of the clothing pat-down, an officer must first be able to articulate factors that he reasonably believed that the individual was armed or dangerous. As with automobiles, reasonable belief carries a relatively low threshold and does not require the production of a warrant. This lower threshold for reasonableness is somewhat justified by the limits of the Terry Stop.

An officer must restrict their pat down to the outer part of the clothing. They cannot dive into pockets unless they can plainly feel contraband or receive consent from the person.

If they feel contraband, the officer may search a person’s pockets without a warrant. For example, if during a pat-down the officer feels a long smooth object that is consistent with the feel of a crack pipe, he may reach into the pocket to retrieve what he reasonably believes is contraband, even if it’s later determined that it was not actually a crack pipe.

Several courts have also upheld implied consent laws to justify even greater intrusions involving a person’s body. For example, many states now require mandatory blood draws for certain DWI arrests.

A defendant’s blood can be forcefully drawn without a warrant under these statutes. Even without a warrant, these statutes have been upheld under the idea that it is reasonable to believe that a defendant consented to the draw when he drove on the public roadways and agreed to the terms of their usage.

The degree of reasonableness to search the body of individuals will usually turn on two things: (1) the location and (2) the circumstances. The more public the location (such as a roadway), the less protection they will be offered. The more private the location (like a home) will garner more protection for a person’s body.

Electronic searches

Electronic searches and seizures have received much attention from the courts. With an increasing amount of crime happening electronically, the Fourth Amendment of the U.S Constitution applies to the search and seizure of electronic devices. Proof of such crime can be found on computers, hard drives, or other electronic devices.

Electronic search cases argue whether law enforcement can search a company-owned computer that an employee uses to manage the business.  Most of them believe that employees do not have a legitimate expectation of privacy with regard to information stored on a company-owned computer.

Are there exceptions to Fourth Amendment protections?

Even if a search or seizure is deemed unreasonable because it was not based on probable cause, the Supreme Court and state courts have developed several exceptions to Fourth Amendment protections.

One is the good faith exception. This essentially involves one agency relying in good faith on information from another agency.

For example, if a defendant is arrested on a warrant from another county and the officer finds cocaine in his pocket, but it is later determined that the warrant had actually been withdrawn in the other county, then the search and seizure will still be upheld because there was no misconduct on the part of the arresting officer. He relied in good faith on the information from an agency in another county.

All courts will recognize consent as an exception to invalid search and seizures. For example, if an officer believes that he has probable cause to search a vehicle at the end of a traffic stop, but instead asks the driver if he can search, then the search will be upheld even if the officer’s continued detentions of the driver were not properly based on the probable cause because the driver consented anyway.

Although not an exception per se, another bar to Fourth Amendment protection is standing. Standing refers to a person’s rights to claim the protection of the Fourth Amendment.

If a defendant knew that the police were watching his house and he somehow convinced his neighbor to hide a stash of marijuana at their residence, the defendant would have standing to complain about a search of his own home. However, the same defendant would not have the right to complain about a search of his neighbor’s house because he was not a property owner or extended guest of the personal property.

Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.

The rules regarding search and seizure are constantly being challenged in state and federal courts. Some states actually provide more protection under state laws or state constitutions.

One area involves private search and seizures. Most search and seizure discussions will only focus on the reasonableness of actions by law enforcement.

If the action was by a private security guard, many states will not apply the U.S. Fourth Amendment protection because the Constutition protects people from the government and a security guard is not a government official.

However, some states have extended protection to include the rights of a person to be free from any unreasonable or unlawful search and seizures, regardless of who conducted the search.

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What’s the exclusionary rule?

If a search is deemed unreasonable, then the initial evidence obtained as a result of the search will be excluded from trial. This is called the exclusionary rule. Any additional evidence obtained as a result of the first illegal search will also be excluded pursuant to the fruit of the poisonous tree rule. Law enforcement’s use of illegally seized evidence taints any other evidence found as a result of that evidence.

However, the police may neglect your privacy issues and make a search of you, your home, car, office, personal or business documents, bank account records, if:

  • they have probable cause to believe they can find evidence that you committed a crime, and judges issue a warrant, or
  • the particular circumstances justify the search without a warrant first being issued

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