The Fourth Amendment does not protect against searches. It does not protect against all warrantless searches. It protects against unreasonable searches. The United States Supreme court has defined an unreasonable search as a search that violates a reasonable expectation of privacy that society recognizes as an expectation of privacy.
The Fourth Amendment states a person has a right to be free of unreasonable searches of their persons (themselves), their house, papers and effects.
A search is defined as an investigation to gather evidence that intrudes on a person’s reasonable expectation of privacy.
Any evidence obtained from an unreasonable search can be suppressed at trial. A defense lawyer will have to file a motion to suppress the evidence. If the motion is granted, the illegally seized evidence cannot be used for trial. If the prosecutor’s case is based off the suppressed evidence, then the case has to be dismissed.
For a suspect and later defendant to succeed on a motion to suppress, the suspect’s expectation of privacy must have been violated. In the legal system that is called “having standing”. For example, if you have an ounce of cocaine stashed in your girlfriend’s purse and the police search your girlfriend’s purse and finds your cocaine, you cannot move to suppress the evidence later. Your girlfriend’s reasonable expectation of privacy was violated, not yours. To have standing for a motion to suppress the evidence, YOUR person, house, papers and effects must have been searched.
Generally, a police officer needs a warrant to search your person, house, papers and effects. However, there are warrant exceptions.
A police officer may search your person (yourself) if he is making a Terry Stop. A Terry Stop is when a police officer reasonably believes you have a weapon and stops to frisk you. A police officer cannot go further than a pat down in order to get a feel of weapons. However, if a police officer pats you down and instantly feels a brick of cocaine, a police officer can seize that cocaine if from all of his police training and procedure, he instantly knew it felt like a brick of cocaine. This is called the “plain feel doctrine”.
Plain view or plain feel doctrine is when contraband is left to where a police officer knew it was contraband from his or her regular activities. If a house is facing the street, with the curtains open and a police officer walks down the street and can see meth pipes on the coffee table, the police officer does not need a warrant to go inside the house because of the plain view doctrine. The contraband must be readily apparent. The police officer cannot make any inquiries or move things around in order to get a plain view of the contraband. If a police officer has no right to be at a place and sees the contraband, the plan view doctrine does not apply.
Another warrant exception is the automobile exception. A police officer does not need a warrant to search an automobile if he has probable cause there is evidence of a crime in the car. The reason behind this is that an automobile can move, and the evidence can be destroyed before there is time to get a warrant. A police officer needs reasonable suspicion to pull a car over such as speeding or a broken tail light. But the police officer needs probable cause to search the car. Probable cause is a reasonable belief that evidence of a crime is inside the car. A police officer cannot go off his “gut” or “haunch”. It must be a reasonable belief. That is a low standard.
Another exception is a search after a lawful arrest. A police officer must have a reasonable belief the area around the suspect contains weapons or evidence in connection of the arresting crime and the suspect can make a grab for the weapons or destroy the evidence. The arrest must be lawful, meaning it has to be valid. Police officers cannot arrest people on a whim. If the suspect is in the back of the police car and/or handcuffed, then the search incident to lawful arrest exception does not apply. There is no danger of the suspect making a grab for a weapon. The suspect also does not have a chance to destroy the evidence. The police officer will need to get a warrant.
Of course, a police officer can search a person for weapons or contraband after a lawful arrest.
Exigent circumstances is another warrant exception. It is an emergency situation where a police officer will not have time to get a warrant to go inside the house or evidence will be destroyed by the time the police officer obtains a warrant. If a police officer hears screaming from inside a house or apartment, then the police officer can go inside the house based on exigent circumstances.
Consent is the most popular method for police officers to get around the need for a warrant. Consent must be clear and voluntary. A person NEVER has to give a police officer consent to search themselves, house, papers or effects. If multiple people live inside a house or apartment, the police officer only needs to get consent from one person. The police officer can wait for the non-consenting parties to leave and then obtain consent from that one person.
However, the police officer cannot go into the rooms of non-consenting parties. They can only search common areas such as a kitchen, living room or other shared spaces. Case law has upheld a search where the defendant did not consent to the search of his apartment. The police officer arrested the defendant and took him to jail. The police officers then went back to the apartment and obtained consent from the girlfriend to search the apartment. The girlfriend said yes, and the courts found that the search was legal and the motion to suppress the evidence wad denied.
DUI check points are allowed. Of course, the police officer will need probable cause to stop you for more than the few seconds they spend on every car to pass the DUI check point. A police officer can make you take a breathalyzer if you are pulled over on DUI suspicion. You consented to this search when you obtained your driver’s license. The consent to breathalyzer tests was in the forms you signed for your driver’s license.
Even felons in California that waived their fourth amendment rights, also called “Fourth Waivers” have some protection. A police officer either must know the person is a Fourth Waiver or must have made an inquiry and discovered the person is a Fourth Waiver. A Fourth Waiver is a person that is on probation or parole in California. In exchange for being granted probation or parole instead of serving a complete sentence incarcerated, the felon has to give up their fourth amendment rights while on probation or parole. That means any officer can search the fourth waiver for any reason. The United States Supreme Court has upheld fourth waivers. The reason behind this is consent. Probation and parole is seen as a privilege and not a right. The felon consents to waive their fourth amendment rights in exchange for getting out of jail or prison early.
A police officer cannot just randomly search a suspect, hope they are a fourth waiver and have the evidence admitted in court based on a lucky hunch the suspect was a fourth waiver. The police officer must know the person is a fourth waiver based off previous dealings with the suspect or ran the suspect’s name and discovered the suspect is a fourth waiver. Fourth waivers generally have to inform all law enforcement they are on probation or parole. If a fourth waiver actually does that, then the cop has a right to search the fourth waiver for any reason.
If a person is a fourth waiver and the police officer knows this, all evidence from any search comes in. However, if a defense attorney can prove the police officer randomly searches this suspect for the purpose of annoyance and harassment, the evidence might be excluded. Searches even on fourth waivers cannot be for the sole purpose of annoyance and harassment. Even fourth waivers have a right to be free from unnecessary annoyance and harassment.
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