We all know what the 4th amendment says: “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.” Having probable cause and an authorized warrant is mandatory, and this requirement is commonly referred to as the warrant requirement. Without these two elements, there’s a presumption that the search or seizure was unreasonable.
So how come the cops can get away with searching you without a warrant? This post looks at common exceptions to the warrant requirement of the 4th amendment.
The first exception to the warrant requirement is called “exigent circumstances.” Here, officers still need probable cause, but they can avoid obtaining a warrant if it is not feasible for them to do so. There are three main exigent circumstances that officers use to avoid the warrant requirement. First, when a suspect is fleeing, 4th amendment does not require police officers to delay in the course of investigation if to do so would gravely endanger their lives or the lives of others. Another example is if the officer is concerned that the suspect will destroy evidence of the crime if the search does not occur immediately. Finally, in the interest of public safety and helping others, officers can avoid a warrant for the sole purpose of ensuring the safety of those inside.
A second exception to the warrant requirement is the plain view exception. This only applies to seizures and three things must be present:
- The officer is lawfully present at the location where the item is plainly viewed;
- The item’s incriminating charcter is clearly apparent;
- The officer has lawful right of access to the object itself.
If the officer satisfies these three elements, then no warrant is required.
Search Incident to Arrest
Another common exception is a search incident to a lawful arrest. This allows an arresting officer to search the arrestee for weapons and contraband and the area immediately around the arrestee. Important to this exception is that there must first be a lawful arrest. If the arrest was unlawful or not supported by probable cause, then any subsequent search is illegal. If you were arrested in a vehicle, the officer may search the vehicle only if you are unsecured and within reaching distance of the passenger compartment of the vehicle or there is reasonable suspicion that the vehicle contains evidence of the offense that led to your arrest.
Challenges to searches and seizures are highly technical when done correctly and you need an attorney who knows what type of motion to file and what cases to cite. The attorneys at Meyer Van Severen, S.C. aren’t afraid to fight illegal searches and seizures and have the knowledge of what it takes to win. If you believe the police conducted an illegal search or seizure in your case, contact our firm immediately.