Search and Seizure
The following is excerpted from The Court TV Cradle-to-Grave Legal Survival Guide, an easy-to-read, in-depth explanation of the law as it affects all aspects of daily life. You can order the book, published by Little, Brown and Company, from our online store. It also is available in local bookstores, or you can call Little, Brown directly at (800) 333-3476.
What is a warrant?
A police search -- particularly of your home -- is generally valid only if the police have first obtained judicial permission, known as a warrant. They usually get this by telephoning a judge or appearing before him and giving a sworn statement explaining what facts have led them to believe that evidence of a crime may be found in your home (or other place they want to search). The judge may issue the warrant only if he or she is convinced that the facts offered by the police amount to probable cause -- a reasonable belief that you have committed a crime or that the search will turn up evidence of a crime.
Do the police always need a warrant to conduct a search?
No. There are many exceptions to the warrant requirement, and this is currently one of the most confused and unsettled areas of American law, so it is important to see a criminal lawyer if you get searched and charged with a crime.
What happens if the police get a warrant to search a person's boat, but instead they come and search her house?
The search is illegal. The warrant gives the police the right to search only the place or places it specifies and for the items it specifies. If you can prove that a search was illegal, any evidence it yielded cannot be used against you in court. Your attorney will bring this to the attention of the judge through a motion to suppress evidence. You may also be able to sue the police for damages for trespassing, but that is very time-consuming, expensive, and seldom worth the effort.
Are there limits to where the police can look in a house even if they have a warrant?
Yes. They are allowed to search only areas that might contain the evidence they are looking for and that are specified in the warrant. For example, if the police suspect you have hidden in your house a rifle that was used in a crime, they will attempt to get a warrant to search those areas where a rifle can be hidden. That usually means that they can look under beds, in closets, or behind doors. It will not authorize them to look into your bedroom drawers or kitchen cabinets for the rifle, unless there is the possibility it would fit into one of those areas.
Can the police break down a door to enter an apartment or house?
Generally, no. The police cannot simply break down the door to gain entrance into your home. Every person has a constitutionally protected right to privacy in his or her home. If the police have a warrant, they are supposed to knock and announce themselves first. However, there are many exceptions to this rule; for example, if they have a reasonable fear for their own safety, or if evidence, such as drugs or gambling records, might be destroyed if they announced themselves, they can break down the door and come in without warning.If the police come to your home just to ask questions, you can simply close the door and refuse to talk, or refer them to your lawyer. This is your right in every state. If they want to enter, they have to get a warrant. If they already have a warrant and you shut the door on them, they can legally break in. So long as the police have a search warrant, they do not need your permission to enter or search your premises. Usually, they must read the warrant to you and leave you a copy. They must also leave you with a copy of the list of items they have seized during the search.
Search and seizure law: The "stop and frisk"
Terry v. Ohio is an important Supreme Court decision, issued in 1968, upholding the right of police, acting with no warrant, to stop and "pat down" a suspect -- without going into his pockets or searching his car. They may then either arrest or release him.In the criminal case that led to this ruling, Ohio police saw a suspicious man who looked as though he was "casing" a store. The police seized the man, patted him down, and found illegal guns on him. He was charged with possession of illegal weapons and convicted.
The conviction was appealed on the grounds that the police did not have a warrant or probable cause to search him, just suspicion. It went all the way to the U.S. Supreme Court, which ruled in 1968 that an officer can pat you down if he has a "reasonably articulable suspicion" that you might be carrying drugs or weapons. This means that the officer has to be able to explain clearly to a court why he thought you might be carrying drugs or weapons.
Remember, though, that the police would still need probable cause to search your clothing, pockets, or car. In other words, Terry allows an officer to do only a "stop and frisk."
The Knock on the Door (or Tent Flap)
The law generally grants people a higher level of protection from searches and seizures in their homes than in their cars, and courts tend to insist that police get a warrant before searching a home. For example, in a 1993 Wisconsin case, a police unit targeted Dean Johnston's house because they'd heard he was having illegal beer parties for college students. Without obtaining a warrant, an undercover team attended a party at Johnston's home, bought beer with marked bills, and then made arrests. Johnston was convicted of selling and giving away alcoholic beverages to underage persons.In his appeal Johnston argued that the warrantless search of his home violated his Fourth Amendment right to privacy. A Wisconsin state appeals court agreed, ruling that the officers had ample time to telephone or radio in a request for a warrant during the course of the party and should have done so.
Of course, if the courts are going to give more protection to homes because people have the greatest expectation of privacy there, the courts have to define what constitutes "a home." This isn't as easy as it sounds, especially when the home is made of nylon. In a case heard by the U.S. Court of Appeals for the Ninth Circuit, campers at a state campground called police in the middle of the night to complain about noise and threats made by camper Kenneth Gooch. One man said that Gooch had fired a shot at him and tried to stick his head into the fire.
Without an arrest warrant, the cops woke Gooch, ordered him out of the tent, and arrested him. They then searched the tent and found a loaded gun. Because Gooch had a previous felony conviction, he was convicted of being a felon with a gun.
Gooch appealed, arguing that the search was illegal because the tent was his home, and his home had been invaded without a warrant. He asserted that at the time of the arrest he had no other residence and had been living in his tent. The appeals court agreed and overturned his conviction in 1993, ruling that a tent at a campsite was like a residence and that officers should have obtained a warrant before searching it.
On the other hand, in a case decided just four months before Gooch, the U.S. Court of Appeals for the Tenth Circuit upheld the warrantless arrest of a drug dealer in a motel room, ruling that the police had probable cause to believe the defendant had committed a crime and to fear he might skip town. The court ruled that a motel room is not a home, and thus the same standard of privacy does not apply.
Can a person be singled out from a crowd at an airport and searched?
Yes, but only under certain circumstances. You can't arbitrarily be stopped and searched. So even at an airport, a police officer can't just pull you aside and ask you to empty your pockets. But at airports and other places, a police officer can stop and question you, though it's your choice whether or not to answer. You should however, provide your name and, if asked, appropriate identification, such as a driver's license.Most stops at airports involve people suspected of drug crimes. Law enforcement agencies have developed profiles of suspected drug dealers. For example, police are suspicious of people who buy one-way tickets with cash and travel with little luggage. An officer who stops you for questioning may do a gentle "pat-down" if he or she has good reason to suspect you are about to commit a crime and can justify the belief that you are carrying a weapon. The pat-down is not considered an actual search, but if it reveals something that feels like a weapon, the officer may then have probable cause to proceed with a more in-depth search. In some limited situations, the officer may proceed to search you if the pat-down reveals something that feels like drugs.
Note: When you are entering or leaving the country, customs and immigration officials have much wider powers of inspection than do the domestic police, and they may search you or your possessions even without probable cause. Also, when traveling via air, you and your bags usually will pass through machines screening for concealed weapons. You have consented to these searches by going through the security checkpoint. If you do not want to have your bags searched, do not go through the checkpoint. Of course, that would mean forgoing your flight.
Can the police search a person's car without permission?
Not unless they have probable cause, which is harder to prove than reasonable belief. The Fourth Amendment area of police searches and seizures is complex and detailed, and is in a constant state of flux. Many state courts apply different standards of probable cause and reasonable belief.With that said, it is possible to make a few generalizations. In order to search your car, an officer must have probable cause to do so. He may look in through the windows all he wants, but he can't get inside and rummage around or demand that you open your trunk. To arrest you, he must have probable cause, and he must also have probable cause to make you open your trunk.
However, anything suspicious that the officer sees, such as an open beer can or a baggie with white powder in it, may be seized without a warrant if it is in "plain view" when the officer looks through the window. Also, the officer is free to ask you to open the trunk of the car. If you agree, you have consented to a search. However, if the officer has no warrant or probable cause, you are free to refuse.
Is the principal or other official of a public school allowed to search a student's purse or backpack?
Yes, under certain circumstances. If the official has a good reason to suspect a particular student, then a search of the student's belongings may be justified. However, students can't be singled out at random for a search. That's the rule established in a 1985 Supreme Court case, New Jersey v. T.L.O. That case found that even though teachers and administrators are entitled to maintain discipline in the classroom and on school grounds, students are entitled to some measure of privacy.
Can a public school official search a student's locker?
The Supreme Court has not ruled on what standards apply to searches of school lockers. In rulings on the issue by lower courts, some say that schools have an unbridled right to inspect lockers, while others assert that students have a right to expect that their lockers are private. Such searched -- as well as searches of desks or other school property provided for storage of student supplies -- raise the same question of how much weight to give the student's right to privacy. An important difference, however, is that a locker or desk is school property given to the student for use during the school year, but a purse or backpack is the student's own property. Therefore, if the Supreme Court ever gets the opportunity to decide the issue, it is likely to find that an official's search of a locker or desk requires less justification than the search of a purse or backpack.
What about searches at private or parochial schools?
There is an important difference between public and private or parochial schools because the Constitution was written to protect individuals from actions by the government. Therefore, a search can violate the Constitution only if the person conducting it is acting "on behalf" of the government, and the Supreme Court has decided that public school officials are acting on behalf of the government when they search students' belongings. Private school faculty and administrators are not usually acting on behalf of the government and thus are not subject to constitutional prohibitions. They would thus be free to conduct a search any time they wanted to without violating the Constitution. If they were requested to conduct a search by the police, though, that would be a different story, since they would then be acting "on behalf" of the covernment.
