The Guide to Unreasonable Search and Seizure

The Fourth Amendment to the U.S. Constitution protects against unreasonable government searches and seizures. If the police violate your Fourth Amendment rights while investigating or arresting you, you may be able to have illegally-obtained evidence excluded from court.

What is the definition of search and seizure?

A search is defined as any time an agent of the government interferes with an individual’s reasonable expectation of privacy, generally by searching their property, body, or home. A seizure can refer to either the seizure of a person or a seizure of property. 

A seizure of a person is defined as when a police officer’s conduct would communicate to a reasonable person that they are not free to leave. For a person to be seized, the police officer must show authority through handcuffs, physical contact, a firearm, or verbal command, and the person must submit to that authority. 

A seizure of property is defined as when a government actor meaningfully interferes with a person’s possessory interest in their property.

What is unreasonable search and seizure?

Reasonableness is considered to be the primary test of whether a search or seizure is constitutional. If a search or seizure is conducted without a warrant, it is presumed to be unreasonable unless it falls within a few exceptions.  The most obvious exception is if the police officer feels that the suspect may have access to a weapon.

When determining whether a warrantless search or seizure was justified, a court will balance the amount the search or seizure intruded on the person’s right to privacy with the government interest advanced by conducting the search or seizure without first obtaining a warrant. To decide whether a search or seizure was unreasonable, a court will look at all the facts and circumstances and objectively analyze the situation.

What’s an example of search and seizure?

Some common examples of a search include:

  • Pat downs
  • Searches of your body or clothing 
  • Searches of your vehicle
  • Searches of your home or rental property
  • Searches of a bag, luggage, or another container
  • Drug dog sniff inspections
  • Electronic surveillance 

Some common examples of a seizure include: 

  • Arrests
  • Traffic stops
  • Investigative detentions
  • Confiscating personal property 

What is a search and seizure amendment?

The Fourth Amendment to the U.S. Constitution, which is part of the Bill of Rights, requires searches and seizures conducted by the government to be reasonable. 

The Fourth Amendment reads:

“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.”

The Constitution is such a great document that allows us to reflect on the history of our country.  The Fourth Amendment was placed in the Constitution because the Americans wanted to guard against government oppression.  They did not want to allow the government to just walk into your house and search around.  They wanted protection from unreasonable governmental power over their autonomy.

Which amendment protects against unreasonable search and seizures?

The Fourth Amendment protects against unreasonable searches and seizures. 

In the mid-1900s, the U.S. Supreme Court determined that if the police obtain evidence against you through an unreasonable search or seizure the evidence cannot be admitted against you in court. This limitation is referred to as the “exclusionary rule” and is meant to deter police officers from violating people’s constitutional rights.

What violates the 4th Amendment?

Any government search or seizure that is found to be unreasonable violates the Fourth Amendment. This means that police officers have the authority to conduct “reasonable” searches and seizures. A court will determine whether a search or seizure was reasonable by balancing the intrusion into the person’s right to privacy with vital government interests, such as public safety.  

A warrantless search or seizure that occurs inside someone’s home or vehicle without a warrant is presumed to be unreasonable. However, some exceptions to this rule exist, including:

  • If the person consents to the search.
  • If the search is conducted as part of a lawful arrest.
  • If there is probable cause and exigent circumstances exist that justify immediate action.
  • If contraband is in ”plain view.”

Some examples of searches and seizures that are considered to be Fourth Amendment violations include:

  • Detaining someone without a reasonable articulable suspicion of criminal activity.
  • Arresting someone without probable cause.
  • Searching a vehicle without probable cause to believe it contains evidence of criminal activity.
  • Conducting a traffic stop without a reasonable articulable suspicion of a traffic violation.
  • Setting up a highway checkpoint program with the primary purpose is to discover illegal drugs.

Do I need a criminal defense attorney near me?

If you’ve been charged with a crime, you should contact a criminal defense attorney as soon as you can. An experienced lawyer can evaluate the circumstances surrounding any searches and seizures that occurred during the investigation and arrest process to determine whether any potential Fourth Amendment violations occurred. 

Suppose the police conducted any unreasonable searches or seizures while investigating and arresting you. In that case, a skilled lawyer can use the exclusionary rule to keep evidence obtained in violation of your constitutional rights from being admitted in court.  In some cases, getting this evidence excluded can force the prosecutor to drop the charges against you altogether.

You might think that you should retain a criminal defense attorney near you, and, in some situations, you should. What is most important is that you hire a lawyer with experience successfully defending clients in the court where you have been charged. Each court has its own little procedural quirks, and an attorney who regularly practices in that court will be familiar with its practices.

Have questions? We protect victims like you every day.

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Read More

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The Defendant’s Guide to Probable Cause

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