The Fourth Amendment to the Constitution of the United States shields individuals against unreasonable searches and seizures. These protections, however, are only provided against searches and seizures that government officials, including law enforcement, perform.
A seizure is the arrest or imprisonment of any individual by law enforcement or the government. In many cases, a court will consider an unreasonable search and seizure as one incident.
However, an unreasonable search can occur without an individual being imprisoned.
When Does the Fourth Amendment Not Cover You?
The Fourth Amendment would apply to a search only if the individual had a legitimate expectation of privacy in the location or item that was searched. If that does not apply, the Amendment offers no defense because there would be no privacy issues.
What Is a Legitimate Expectation of Privacy?
In general, courts will use a two-part test that was created by the United States Supreme Court to determine whether, at the time of a search, the defendant had a legitimate expectation of privacy in the location or items searched, which includes the following questions:
- Did the individual anticipate some degree of privacy?
- Is the individual’s expectation objectively appropriate?
- In other words, is it one that society is willing to acknowledge?
For example, an individual who is using a public restroom has an expectation that they will not be spied upon. In other words, they expect privacy.
The majority of individuals would assume that expectation is objectively fair. This means that installing a video camera by law enforcement in a public restroom would be considered a search.
This would be subject to the Fourth Amendment’s condition of reasonableness. In contrast, if law enforcement stops a vehicle and, when speaking to the driver, sees a weapon on the passenger seat, there has not been a search under the Fourth Amendment.
This is because, even if the driver believed that the passenger seat was a private location, society is not inclined to extend privacy protections to that location. In other words, there is no objective, reasonable expectation of privacy because the weapon was in plain view.
What Are Private Security Personnel?
Private security personnel currently outnumber law enforcement officers in the United States by a ratio of three to one. This means that when individuals are shopping in supermarkets or drugstores, working in office towers, or seeing an individual in housing projects, they are more likely to be approached by a security guard than a law enforcement officer.
The Fourth Amendment does not apply to investigations that are handled by non-governmental workers, such as private security guards, who are not working on behalf of the government. For example, suppose that a security guard in a shopping mall is acting on pure suspicion and probes a teenager’s bag.
Inside that bag, the security guard finds a baggie that contains an illicit narcotic. The security guard may confine the teenager, call law enforcement, and turn the evidence over to law enforcement.
In this situation, the narcotic evidence would be permissible because the search was performed by a private security guard who was acting independently and not under the directive of a law enforcement officer or government agency.
What Is a Search?
A search is a physical invasion or examination of an individual’s reasonable expectation of privacy. Pat-downs and security efforts, such as metal detectors and airport scanners, can be used to search an individual.
Often, when an individual thinks of a search, they think of going through an individual’s property, such as their home or automobile, in order to uncover evidence. The word search, however, is vast.
A search may also include phone taps, computer access, and observation of an individual’s home or GPS locator.
What Is “Reasonable?”
When an individual has a reasonable expectation of privacy, that expectation is personal. This means an individual expects a certain action or area to be private.
In general, this expectation must be reinforced by what is acknowledged by the public as private. For example, suppose Jane is in a crowded restaurant and steps into a private room to make a phone call.
In this situation, there would be a reasonable expectation of privacy. However, there would not be an expectation of privacy if Jane answered her cell phone at the table and talked loud enough for those around her to hear.
An individual’s expectation of privacy will depend on two main issues: the individual’s behavior and society’s point of view.
What Is an Unreasonable Search?
An unreasonable search occurs when law enforcement conducts a search without a warrant and without probable cause. Probable cause exists when it is more likely than not that proof of a crime will be found in the location that is being searched.
A court provides a search warrant. A search warrant provides law enforcement with authorization to search for evidence.
Searches that are conducted without a search warrant are considered unreasonable under the Fourth Amendment. Any evidence that is found during an unlawful search will most likely not be used against a defendant in court.
There are a few exceptions that allow law enforcement officers to search without a warrant, including:
- When an individual consents, willingly and freely, to their property being searched;
- If the evidence is in plain sight of the law enforcement officer or public;
- If law enforcement is tracking or in “hot pursuit” of an individual;
- When an individual is arrested, law enforcement officers may search their body and near surroundings;
- This is limited to the search for weapons;
- Vehicles during a traffic stop when a law enforcement officer has a reasonable belief that evidence or illegal items are present; and
- Law enforcement does not need a warrant if they fear evidence being destroyed or an individual being injured immediately.
Does a Police Officer Have to Knock Before Entering a Home?
Typically, law enforcement officers will follow what is called the knock-and-announce rule. This rule instructs law enforcement officers to issue warrants and to knock and make their presence and intentions known.
Aside from the exceptions listed above, law enforcement may enter the property if no one answers the door after a reasonable pause. The entry, however, has to be necessary and appropriate, for example, to stop evidence from being destroyed, and not simply because nobody is home.
What Are My Rights if Police Conduct an Unreasonable Search?
Breaching the Fourth Amendment can result in the potential exclusion of evidence at trial. However, it is important to note that, in certain situations, the evidence may still be admitted, even if an individual’s rights were violated.
Do I Need an Attorney if I Was a Victim of an Unreasonable Search?
You may believe that your rights against unreasonable searches by law enforcement have been violated. If so, it is important to consult with a criminal defense attorney. Your attorney can review your case and determine whether your rights were violated.
If your rights were violated, your lawyer can motion to the court to have the evidence excluded. Your lawyer will also represent you in court and present any defenses that may be available in your case.
