You have a constitutional right to privacy. This privacy right extends from your person to your home, car, and immediate possessions. If there is a sufficient reason, the police can search you and your property; however, the police cannot just search for anything at any time. On this page, I will discuss a few common situations that relate to legal and illegal searches. If you think you have been involved in an illegal search, you can contact an attorney for help.
The Fourth Amendment and Illegal Searches
The Fourth Amendment to the Constitution protects citizens from unlawful searches and seizures. It provides that the police must get a warrant signed by a judge before they can search. Warrantless searches are generally considered unreasonable and in violation of your civil rights.
However, there are exceptions to the warrant requirement. When our attorneys review police searches, the line is often blurred between lawful searches and illegal searches. But when the search is unlawful, our Constitution provides a remedy.
There are rules that the police must follow if they are going to lawfully search you, your home, or your things. If you have been charged with a crime, and the police found the evidence against you through an illegal search, your lawyer can have that evidence excluded from your criminal case.
The Fourth Amendment’s protection applies to situations in which a police officer makes a stop or an arrest. It also applies to police searches of any place where you have a reasonable expectation of privacy. This includes places such as your apartment or things like your car, clothing, backpack, and purse.
In most cases, the police cannot search you or your property unless they have:
(1) a valid arrest warrant signed by a judge;
(2) a valid search warrant signed by a judge; or
(3) probable cause to believe that a crime occurred.
Here are some police warrantless search scenarios.
Imagine this situation: You are spotted walking around on the sidewalk outside the front window of a department store. It is almost closing time for the store. A police officer asks you to stop and wants to question you. The police officer does not have a warrant. Is it legal for the police to stop and question you?
YES, under these circumstances. If the police officer has a reasonable suspicion that criminal activity is taking place, or has just taken place, the police officer has the right to stop you for some very brief investigatory questioning. In this scenario, the police officer believed that you were “casing” the department store in preparation for a robbery.
Can the officer conduct a pat-down to search for a weapon? YES, so long as the police officer has a reasonable belief that you might be armed with a weapon. In this scenario, the police officer suspected you were preparing to rob the department store. Robberies often involve use of weapons. Therefore, for their own safety, the police officer is justified in performing a pat-down of your person.
However, the cop’s authority to search is limited to a pat-down for weapons. The officer does not have the right to perform a more-detailed search, or even a general search for evidence of crimes.
How about this: The police believe that there is evidence located inside of a garden shed in your backyard. The shed is not attached to your house, but it is locked.
Can the police search your shed without a warrant?
Your shed is locked, and it is located on your property. You have a clear expectation of privacy in its contents. The police need a warrant signed by a judge to search your backyard shed.
Consider this: The police pull over your car for speeding. You are nervous and seem like you have something to hide. On a hunch, the police officer wants to search your trunk for evidence of a crime. Can the police officer search your trunk?
Unless you let them, or otherwise give them a justified reason (probable cause), the police have no legal right to search your trunk.
What about this: You place your garbage in a trash bags. Every Monday, you take your trash bags from your garage for pick-up. The trash bags are placed just beyond the end of your driveway on the public sidewalk. The police search your trash can before it is collected. The police do not have a warrant. Is this legal?
YES. The Courts have ruled that you have no reasonable expectation of privacy in the contents of trash cans placed off of your property.
How about this: You like marijuana. You have a vegetable garden and decide to grow your own marijuana plants. Growing (your own) marijuana is against the law. The police are doing random fly-overs with their police helicopter. They do not have a search warrant for your property. One of the officers in the helicopter spots your marijuana plants. Is this fly over search legal?
YES. You have no reasonable expectation of privacy in the air/space above your property. Your marijuana plant was in “plain view” to anyone up in the helicopter. There is nothing unconstitutional about this search.
And this: The police think that you sell drugs. They came to your house before and you sent them away because they did not have a warrant. Today, the police come back to your house right after you leave for work. They still do not have a search warrant. You and your spouse jointly own your home. They ask your spouse if they can enter and search the home. Your spouse says, “Sure, come on in. We have nothing to hide.” The police search your home and find lots of narcotics. Is this search legal?
YES. Your spouse is one of the co-owners of the home, and consented to the search. Agreeing to allow the search (consent) is one of the exceptions to the warrant requirement. If you agree to let them search, you are waiving privacy.
The difference between a legal search and an illegal search often turns on the facts of the particular situation. The Fourth Amendment protects people; not things. Your degree of protection depends upon the reasonableness of your privacy expectation.
If your civil rights were violated because of an unlawful search, you have the right to sue the police officer for money damages.