Search and Seizures
A search and seizure is governed by strict laws to ensure it is carried out correctly. The Fourth Amendment specifically prohibits illegal search and seizures to ensure people can enjoy their property and space without government intrusion. A number of state laws and court interpretations apply to search and seizures too.
Frequently Asked Questions For Search and Seizures
In this article, we will answer the following frequently asked questions about search and seizures.
- At what point does a police investigation become “searching”?
- Is my private property actually private?
- What is a search warrant and how do the police get one?
- What powers does a search warrant grant police in a search and seizure?
- Do police always need a search warrant?
- Is it an illegal search and seizure if my roommate or landlord gave the police permission to look through my things?
- Can police search my vehicle and frisk me during a traffic stop?
- Can the police search my car if it is impounded?
Search and Seizures and Privacy
At What Does a Police Investigation Become “Searching”?
The Fourth Amendment prohibits searching or search and seizure which violates a person’s right to privacy. When determining if a police investigation became a “search,” the court will consider the following questions.
- Should the person whose property or home was being investigated be allowed a degree of privacy?
- Is the expectation of privacy reasonable?
If either question is answered with a no, then the investigation was an investigation, not a search and therefore does not violate the person’s Fourth Amendment rights.
Search and Seizures: Is My Private Property Actually Private?
Any of your belongings on your property or in your house are private. If the police need to access evidence on your property or in your house, then they must obtain a search warrant.
The police do not need a search warrant to conduct a search and seizure if:
- They are trying to prevent you from destroying evidence
- The contraband is in plain sight when the officer is on your property for a legitimate reason
- You consent to the search and they find contraband
The law allows police officers to use low-tech listening devices or take aerial photos of your home in order to obtain a search warrant. If they use high-tech equipment, the surveillance or eavesdropping becomes an illegal search and seizure.
Search and Seizures: Search Warrants
What Is a Search Warrant and How Do The Police Get One?
A search warrant gives the police permission to conduct a search and seizure to uncover criminal evidence. The search warrant is issued by a magistrate or judge and addressed to the owner of the property. In order to obtain a search warrant, the police must present facts that make it reasonably likely that they will find evidence on the property.
In most cases, the police need a search warrant for search and seizures. Entering the property to look for evidence without a search warrant is considered an illegal search and seizure unless there is reasonable cause. The police will have to justify why they were conducting the search and why they did not apply for a warrant.
When the police apply for a search warrant, they judge will require:
- Probable cause that a crime has occurred
- A reason why they believe contraband or evidence of the crime will be found at the property in question or on the person in question.
This evidence must be based on the observations of police or others. If the evidence is based on the observations of others, then the police will need to prove that the source is reliable.
What Powers Does a Search Warrant Grant Police In a Search and Seizure?
A search warrant allows the police to enter a property without the owner’s permission for a search and seizure. The police can only search the areas listed in the search warrant.
The police can search more places than the search warrant lists if:
- They need to search wider to ensure the safety of them and others
- To prevent the destruction of evidence
- Their initial search suggests the presence of additional evidence in other areas of the property
- If evidence in additional areas is in plain view
Do The Police Always Need a Search Warrant For a Search and Seizure?
No, there are a number of cases where the police can conduct a search and seizure without a search warrant. Here are the most common examples where a lack of search warrant is not an illegal search and seizure:
- If you consent to the police entering your property to search for evidence/contraband
- If there is an emergency situation that puts the safety of other people at risk
- If someone has been arrested, the police can search the person and their immediate surroundings. Usually this is only for weapons or contraband in plain view.
- If the contraband or evidence is in plain view and the police are legally authorized to be where they are.
Is It An Illegal Search And Seizure If My Roommate Or Landlord Gave The Police Permission To Look Through My Things?
The person in charge of an area must give police permission for a search and seizure if they do not have a warrant. So a roommate can allow the police to search communal areas and their bedroom, but not your personal bedroom.
A landlord may own the property but is not in charge of your apartment or house. Therefore, they can allow police to conduct a search and seizure in communal areas of the building, but not your apartment.
If the police have a good reason for a search and seizure that does not require a warrant, like an emergency, then your landlord or roommate might let them in.
Search and Seizures: Personal Vehicles
Search and Seizures: Can The Police Search My Car and Frisk Me During a Traffic Stop?
The police can only frisk you if there is reason for them to believe you are armed. In that case it would not be an illegal search and seizure if they find contraband while frisking you for a weapon.
The Supreme Court ruled to allow police officers to search the passenger compartment of the car if:
- The person being arrested is within reaching distance of the passenger compartment at the time of the search
- If there is reason to believe that your vehicle contains any evidence for the crime you are being arrested for
If neither of those are present, then it would be an illegal search and seizure.
Can The Police Search My Vehicle If It Was Impounded?
Yes. If the police towed your vehicle and had it impounded, then they can search your vehicle. The police must have a reason for towing and impounding your car before they conduct a search and seizure. They cannot just tow your car for the purpose of searching it.