The Fourth Amendment to the United States Constitution protects people against "unreasonable" searches and seizures by law enforcement. This article briefly outlines when police can reasonably search you and your vehicle and how to challenge an unreasonable search in court.
The general rule is that a valid warrant is required for a search. A search warrant is an order by a judge that authorizes police to search for specific items at a particular place and time. For example, a search warrant for the office of a suspected tax evader might authorize police to search “the desk, file cabinets, and personal computer” of the suspect at “8 Columbus Street between the hours of 9 a.m. to 5 p.m.”
To obtain a search warrant, officers must convince a judge that they have probable cause (a reasonable suspicion based on facts) to believe that criminal activity is occurring at the place to be searched or that evidence of a crime might be found there.
A warrant is like a permission slip for a search signed by a judge. Search warrants can still be challenged in court (see below), but they are presumed to be lawful.
Courts stress the importance of search warrants, but there are a few “specifically established and well-delineated exceptions” to the warrant requirement. (Katz v. United States, 389 U.S. 347 (1967).)
Officers can briefly stop (detain) people they reasonably suspect of criminal activity. If they have further reason to suspect that the person is armed and dangerous, they may frisk (pat down) the person’s outer clothing for weapons. An officer can seize contraband (like a bag of cocaine) discovered during a limited frisk for weapons if it is immediately recognizable as contraband by plain feel or touch.
People can waive their Fourth Amendment rights and consent to a search. Valid consent must be voluntary and unequivocal, but it doesn’t have to be written. Consent can be verbal or even implied based on conduct in some states. Officers don’t necessarily have to “read people their rights” before a search and are not required to warn people that they have a right to refuse consent to a search.
People don’t have an expectation of privacy in property that is exposed to the public. So, police typically don’t need a search warrant for items in “plain view.” Officers must have a right to be in the area where the item is first spotted, and they must have probable cause to believe the item is evidence or contraband in order to seize it. For example, if an officer pulls over a car and sees an illegal weapon on the center console, the officer can probably examine it, seize it, and arrest the driver.
Officers have the right to fully search (not just frisk) people they have lawfully arrested to protect themselves and preserve evidence for trial. The general rule is that police may search an arrested person and the area within that person’s immediate control at the time of the arrest.
Examples of items that police can examine and seize during a search incident to arrest include the arrested person’s:
Sometimes officers need to act quickly to protect people or prevent the destruction of evidence. In emergencies (sometimes called exigent circumstances), officers can conduct searches without waiting for a warrant. Judges decide on a case-by-case basis whether a search based on exigent circumstances was reasonable under the circumstances.
Examples of exigent circumstances include:
The general rule is that police can search a vehicle (car, trucks, motorcycles, bicycles, boats) without a warrant if they have probable cause to search it. In this context, probable cause means a fair probability that contraband or other evidence of a crime is currently located inside the vehicle.
Example. Officer Bruce pulls a car over for speeding. When he asks the driver for her license and registration, he notices a glass pipe in her shirt pocket. He also smells a strong chemical odor in the car. Based on his observations, Officer Bruce has probable cause to search the car for controlled substances.
Police might also be able to search the passenger compartment of a vehicle incident to the arrest of the driver or passenger if the arrestee is within reaching distance of the car when the police conduct the search. Here, the passenger compartment includes all containers (open or closed) and storage areas (glove box, console) but not the trunk.
When police impound (tow and store) a car, officers can lawfully search it to make a record of what’s inside during an “inventory search.” Inventory searches are for officer safety and to guard against allegations of theft by police. Inventory searches are not supposed to be for gathering evidence, but if police run across incriminating evidence during a search, the evidence can typically be used against the defendant if:
A defendant might challenge the introduction of evidence in a criminal case based on the argument that the evidence was found during an unreasonable (unconstitutional) search. For instance, the defendant might argue that the officer did not have a warrant when conducting the search and no exception to the warrant requirement (consent, plain view) justified the search.
In court, the defendant would make a motion to suppress (exclude) the evidence. If the court agrees the search was unreasonable, the evidence seized (and any evidence derived from it) cannot be used against the defendant at trial. This is known as the exclusionary rule.
Example. Officer Bruce sees Johnny Diaz walking down the street. Mr. Diaz is wearing a hooded sweatshirt on a hot summer day, which Officer Bruce thinks is odd. Officer Bruce orders Mr. Diaz to stop. He searches Mr. Diaz’s sweatshirt and finds suspected cocaine. Mr. Diaz is charged with possession of a controlled substance. Mr. Diaz files a motion to suppress the introduction of the cocaine as evidence. The judge grants Mr. Diaz’s motion because Officer Bruce had no warrant and no justification for detaining and searching Mr. Diaz. Without the cocaine as evidence, the prosecution will likely have to dismiss the case against Mr. Diaz.
You have the right to be free from unreasonable searches by the police. It's best to consult with a lawyer before consenting to any search. If the police have searched you and you are facing criminal charges, talk to a lawyer as soon as possible. An experienced criminal defense attorney in your area can review your case and advise you on how to defend yourself in court.