As discussed in my last post, in order for a government agent to arrest you or search you or your property, the Fourth Amendment says they must first have a valid warrant. To refresh your memory, here’s the language of the Fourth Amendment to the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Seems pretty straightforward: no warrant, no search or seizure. But as we all know, there are are many times when the police search and detain or arrest a person, or search and seize a person’s property, without first getting a valid warrant. For example, the police regularly make arrests on the street or during traffic stops, enter private homes or businesses during investigations, and search personal effects, homes and vehicles without a warrant.
If the Constitution says they must first have a warrant, how can they do all those things without one? The simple answer is that there are exceptions to the warrant requirement. There are exceptions because the Fourth Amendment only protects against unreasonable searches and seizures. The interpretation of the word “unreasonable” is something we must examine in order to fully understand the Fourth Amendment’s protections.
DON’T BE UNREASONABLE
The United States Supreme Court says that the Fourth Amendment does not prohibit a search or seizure without a valid warrant so long as the search or seizure is reasonable under the circumstances. So who decides what is reasonable when it comes to government searches and seizures? The Supreme Court, mainly, and they have laid out several “reasonable” exceptions to the warrant requirement.
WHY ARE THERE EXCEPTIONS TO THE WARRANT REQUIREMENT?
According to the Fourth Amendment, all searches and seizures must be reasonable. Searches and seizures conducted pursuant to a valid warrant, as defined by the language of the Constitution, are reasonable. Searches and seizures conducted without a valid warrant are presumed unreasonable.
But in order for things to work properly, there have to be exceptions to the rule, right? In this case, most people agree that there should be exceptions. If an officer sees a crime being committed or a traffic law violated, should they have to find a judge and get a warrant while the suspect escapes? When making an arrest, should an officer be able to check the arrested person’s clothing for dangerous weapons? If an officer hears a person screaming for help in a private home, should they be able to enter that home without a warrant in order to help? These are all questions that have been addressed by the court in an attempt to determine when a warrantless search, seizure or arrest by a government agent is “reasonable” under the Fourth Amendment.
The court wants to avoid unduly impeding the government’s investigation of criminal activity and the protection of its citizens; but the court also understands that each of those citizens individually has a right to be left alone to enjoy his or her own privacy and freedom. To that end, the Supreme Court has tried to balance the government’s interests with the privacy rights of the individual. It has done so by considering the totality of the circumstances in each case to determine if the search or seizure was justified. It is a difficult equation with many variables. The result: several exceptions to the warrant requirement that the court has deemed reasonable and justified given the totality of the circumstances.
WHAT ARE THE EXCEPTIONS TO THE WARRANT REQUIREMENT?
While not a complete list, here are some of the most common exceptions to the warrant requirement:
WHAT DOES THIS MEAN FOR YOU?
The Fourth Amendment protects you from unreasonable searches and seizures conducted by the government without a warrant. But there are many instances where a warrant is not needed, a.k.a., the “reasonable” exceptions. These exceptions have been carved out by the courts in an attempt to balance the benefits of protection by the government with your individual right to be protected from the government. The result is a series of court decisions and tests that can help determine whether the government has violated your Fourth Amendment rights.
If you are charged with a crime where evidence was obtained by an illegal search or seizure, you have the right to suppress that evidence so it cannot be used against you. In our daily lives, these issues usually arise when we deal with local police or sheriff’s deputies. Sometimes these officers act beyond their authority in violation of the Fourth Amendment. It is very common, in fact. Being stopped, questioned or arrested by an officer is stressful and can cause a great deal of fear and anxiety. Knowing your Fourth Amendment rights, so that you aren’t bullied or tricked, can help reduce that fear and anxiety.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Seems pretty straightforward: no warrant, no search or seizure. But as we all know, there are are many times when the police search and detain or arrest a person, or search and seize a person’s property, without first getting a valid warrant. For example, the police regularly make arrests on the street or during traffic stops, enter private homes or businesses during investigations, and search personal effects, homes and vehicles without a warrant.
If the Constitution says they must first have a warrant, how can they do all those things without one? The simple answer is that there are exceptions to the warrant requirement. There are exceptions because the Fourth Amendment only protects against unreasonable searches and seizures. The interpretation of the word “unreasonable” is something we must examine in order to fully understand the Fourth Amendment’s protections.
DON’T BE UNREASONABLE
The United States Supreme Court says that the Fourth Amendment does not prohibit a search or seizure without a valid warrant so long as the search or seizure is reasonable under the circumstances. So who decides what is reasonable when it comes to government searches and seizures? The Supreme Court, mainly, and they have laid out several “reasonable” exceptions to the warrant requirement.
WHY ARE THERE EXCEPTIONS TO THE WARRANT REQUIREMENT?
According to the Fourth Amendment, all searches and seizures must be reasonable. Searches and seizures conducted pursuant to a valid warrant, as defined by the language of the Constitution, are reasonable. Searches and seizures conducted without a valid warrant are presumed unreasonable.
But in order for things to work properly, there have to be exceptions to the rule, right? In this case, most people agree that there should be exceptions. If an officer sees a crime being committed or a traffic law violated, should they have to find a judge and get a warrant while the suspect escapes? When making an arrest, should an officer be able to check the arrested person’s clothing for dangerous weapons? If an officer hears a person screaming for help in a private home, should they be able to enter that home without a warrant in order to help? These are all questions that have been addressed by the court in an attempt to determine when a warrantless search, seizure or arrest by a government agent is “reasonable” under the Fourth Amendment.
The court wants to avoid unduly impeding the government’s investigation of criminal activity and the protection of its citizens; but the court also understands that each of those citizens individually has a right to be left alone to enjoy his or her own privacy and freedom. To that end, the Supreme Court has tried to balance the government’s interests with the privacy rights of the individual. It has done so by considering the totality of the circumstances in each case to determine if the search or seizure was justified. It is a difficult equation with many variables. The result: several exceptions to the warrant requirement that the court has deemed reasonable and justified given the totality of the circumstances.
WHAT ARE THE EXCEPTIONS TO THE WARRANT REQUIREMENT?
While not a complete list, here are some of the most common exceptions to the warrant requirement:
- Consent. A person can agree to the search or seizure of his or her own person or property.
- No warrant is required for felony arrests made in public places. Felony arrests in places not open to the public are allowed if the officer is in “hot pursuit” of a fleeing suspect (see Warden v. Hayden, 387 U.S. 294 (1967)). Arrests for misdemeanors committed in an officer’s presence do not require a warrant.
- Upon lawful arrest, with or without a warrant, an officer may conduct a search of the suspect’s person, clothing, and the areas within the suspect’s immediate reach in order to secure the safety of the officer.
- Traffic stops are allowed by an officer with a reasonable and articulable suspicion that the driver has violated a traffic law. After the stop the officer may search the vehicle’s interior, including the glove compartment, if they have reason to believe that the car contains a weapon or evidence of crime that someone other than the driver might dispose of (Arizona v. Gant, U.S. Sup. Ct. (2009)). Officers cannot open the truck unless there is probable cause to believe that it contains contraband or the instrumentalities of criminal activity. When lawfully impounded, an entire vehicle, including its trunk, may be searched so that its contents may be inventoried.
- An officer who reasonably suspects criminal activity in a public place may stop a person suspected of participating in that criminal activity to search the suspect’s outer clothing for weapons (see Terry v. Ohio, 392 U.S. 1 (1968)). This is known as a “Terry stop” or a “Terry frisk,” and aims to protect officers.
- Exigent circumstances may justify a warrantless search, seizure or arrest. Examples: shots fired, screams heard, or fire emanating from inside a building.
- Brief seizures at fixed roadside checkpoints for narrowly tailored purposes, such as intercepting illegal aliens (see United States v. Martinez-Fuerte, 428 U.S. 543 (1976)) and stopping drunk drivers (see Michigan v. Sitz, 496 U.S. 444 (1990)) may be reasonable. This does not include checkpoints aimed only at detecting ordinary criminal activity (see Indianapolis v. Edmond, 531 U.S. 32 (2000)).
- Good faith searches, seizures, and arrests made pursuant to a defective warrant are reasonable, so long as the warrant was issued by a magistrate and the defect was not the result of willful deception by the warrant applicant (see United States v. Leon, 468 U.S. 897 (1984)).
WHAT DOES THIS MEAN FOR YOU?
The Fourth Amendment protects you from unreasonable searches and seizures conducted by the government without a warrant. But there are many instances where a warrant is not needed, a.k.a., the “reasonable” exceptions. These exceptions have been carved out by the courts in an attempt to balance the benefits of protection by the government with your individual right to be protected from the government. The result is a series of court decisions and tests that can help determine whether the government has violated your Fourth Amendment rights.
If you are charged with a crime where evidence was obtained by an illegal search or seizure, you have the right to suppress that evidence so it cannot be used against you. In our daily lives, these issues usually arise when we deal with local police or sheriff’s deputies. Sometimes these officers act beyond their authority in violation of the Fourth Amendment. It is very common, in fact. Being stopped, questioned or arrested by an officer is stressful and can cause a great deal of fear and anxiety. Knowing your Fourth Amendment rights, so that you aren’t bullied or tricked, can help reduce that fear and anxiety.
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