A Brief Overview of Search and Seizures Under the Fourth Amendment

The Fourth Amendment to the U.S. Constitution grants people the right to be free from unreasonable search and seizures.

The key  point in the above right is that the search or seizure, whether pursuant to a warrant or under one of the exceptions to the requirement of a warrant ( so called warrantless searches and seizures ), is that the search and/or seizure be reasonable based upon the totality of all the facts  and circumstances known at the time. If a search or seizure by the police is challenged in court by the defense counsel, then the judge will decide whether it was a valid  and reasonable search/seizure. If the Judge determines that it was reasonable then any evidence discovered as a result is admissible  and thus a motion to exclude this evidence from being presented at trial would not succeed. If the Judge found that the search/seizure was invalid and unreasonable, then any evidence obtained as a result of the search/seizure, upon  a  defense counsel’s motion to suppress (exclude the evidence ) would be excluded under the fruit of the poisonous tree doctrine . This doctrine would not only apply to unreasonable search/seizure, but also to an unlawful arrest. If the arrest is unlawful, then any evidence found as a result of a search/seizure incident to the arrest would be excluded even if the search/seizure was conducted properly, because the unlawful arrest invalidates the search/seizure.

There is an exception to the general exclusionary rule that states that any evidence found as a result of an unlawful arrest and search/seizure is excluded from trial. The exception is called the inevitable discovery rule, which basically means that even though the police search/seizure was unlawful and the evidence would be excluded, it will not be excluded if the police can show that they would have inevitably discovered the same evidence at a later date  but this time by lawful means ( like pursuant to a valid search warrant.)

Generally, the police need a search warrant to search closed containers, vehicles, homes and persons. A search warrant is made by the police or a prosecuting attorney making a written application which states with specific detail such things as: the item(s) looking for, the place and things to be searched, and the basis for the belief that the things and places being searched will in fact contain the items the police are searching for ( example guns, drugs or other evidence ). Based on the application the judge will either grant or deny the application. If he grants it, he will issue the search warrant and the officers will then be able to go to the place to be searched  and search only the things and places named in the warrant for the items named in the warrant. The police can only search for the items they asked to search for. Example–  If the search warrant authorizes a search for drugs at a location, the police can not use that to also search for guns and thus if police opened a closet or other container that they were not authorized by the search for drugs and they found guns the guns would be suppressed. However in the law there are exceptions  and exceptions to exceptions, so in the above example if the guns were in plain view ( the police could see them without searching in places they were not authorized to do ) then the guns would not be suppressed. Not surprisingly, this exception is commonly called the plain view exception.

There are many exceptions( too many for full discussion in this article ) to the requirement of needing a warrant to search. However a common example of an exception is the exigent circumstances exception. What this means is that there are exigent (urgent) circumstances such that there is not time for the police to apply to the judge to get a search warrant because by that time the evidence would be lost or destroyed . A common example of this exception is that police are lawfully at an apartment where they received a reliable tip informing them drugs were being sold   there, and the alleged perpetrators of drug crimes are present at the apartment and the police are afraid they will flush the drugs down the toilet or flee with the drugs. Obviously in this scenario there is no time to obtain a search warrant.

The Law of search and seizure and suppression of evidence is very complex and is generally decided on the specific facts and circumstances of the case. Numerous treatises have been written on it  and there is a large volume of case law interpreting the statutory law. Any further discussion is way beyond the scope of this brief overview of this subject.

Watch for future articles on Criminal and Civil Law.


About edwardddowlingivattorneyatlaw

Established my General Practice Law Firm in 1991 Criminal and Civil Litigation Trials and Appeals Federal and State courts Nassau and Suffolk Counties All 5 boroughs of NYC
This entry was posted in Civil Rights, Criminal Law, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s