Know Your Rights - Searches and Seizures
Under the Fourth Amendment to the United States Constitution and Article I, section 10 of the Minnesota Constitution, the police are limited in their authority to make arrests, search people, and seize property. While the police may invade your privacy to the extent that their conduct is considered “reasonable,” it is unlawful for them to carry out “unreasonable” searches and seizures. It is necessary for you to understand your constitutional right against unreasonable searches and seizures for one important reason—all evidence obtained by searches and seizures that violate the Constitution may not be used against you in criminal court.
What is a Search Under the Fourth Amendment?
For years, the United States Supreme Court recognized that a search could only occur if the police had physically trespassed on an individual’s private property. For instance, wiretaps attached to telephone wires on public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants.” Olmstead v. U.S. (1928). However, in the landmark case Katz v. United States (1967), where officers recorded a defendant’s phone booth conversation, the Court recognized that a physical trespass was no longer required. Rather, because “[t]he Fourth Amendment protects people, not places,” things a person knowingly exposes to the public (even in his own home) are not afforded Fourth Amendment protection, while things that a person seeks to keep private (even in a public place) may be constitutionally protected.
After Katz, a new “twofold requirement” developed for determining whether a search had occurred for purposes of the Fourth Amendment:
1. Does the searched person actually expect their conduct to remain private?
2. If yes, is that expectation of privacy considered reasonable by society?
In answering these questions, courts first focus on whether the searched person has exposed or concealed the information, as it is not reasonable for individuals to expect privacy when they expose to the public their conduct or information about themselves. California v. Greenwood (1988). For example, if a person posts information publicly on Facebook, they do not have a reasonable expectation that their post will be kept private. Generally, if the vantage point from which the information is discovered is one where the public has a legal right to be, there is no reasonable expectation of privacy in the information. Florida v. Riley (1989). Courts then determine whether the information is located in a public or private place, consistently recognizing the home as the place where people enjoy the most reasonable expectation of privacy.
When is a Search Considered Unreasonable? —the Warrant Requirement and its Exceptions
As a general rule, any search conducted without a search warrant and supported by probable cause is unreasonable. California v. Acevedo (1991). Probable cause exists if, based on all the surrounding facts, there is a fair probability that certain people or items will be found in a certain place, and that those people or items are sufficiently connected with criminal activity. Unfortunately, the Court has created numerous exceptions to the general rule—seemingly making warrantless searches more common than those supported by a warrant. Therefore, it is crucial for you to understand some of the most common exceptions to the warrant requirement.
1. Searches Incident to Arrest
After an individual is arrested, the police may conduct a limited search of the person and the area within that person’s immediate control. The police may also search areas into which the person might reach to grab a weapon or evidence (at the time of the arrest). Arizona v. Gant (2009). This means that, if you are arrested after operating a vehicle, officers will likely have the power to search the entire passenger compartment. Similarly, if you are arrested while in your home, officers may search the immediate area where you were arrested, as well as any adjoining rooms or closets.
You should also note that, while the police always need probable cause to arrest you, they do not need additional probable cause to search you after the arrest.
2. Vehicle Searches
The police may lawfully conduct a warrantless search of a vehicle as long as they have probable cause to believe that a crime has been committed and probable cause to believe that there is evidence of the crime in the vehicle. Carroll v. U.S. (1927). If officers have probable cause to search a lawfully stopped vehicle, they may search every part of the vehicle and its contents that may conceal the object of the search. This means that officers may search under the hood, in the trunk, and in any closed containers, provided the object they are looking for could be found there. Things that may give officers probable cause to search a vehicle include:
an odor of burning marijuana
an odor of paint
a shot fired from a vehicle
evidence of narcotics possession; and
an arrest under the open container law
3. Impound and Inventory Searches
Once the police lawfully impound a vehicle, they may search it without a warrant, as long as they follow standard department procedures in carrying out the search, and perform the search, at least in part, for the purpose of obtaining an inventory. State v. Holmes (Minn. 1997). Specifically, officers may search any unlocked compartment where valuables may be stored (such as the glove box or console), as well as any container or article in the possession of a person being arrested. Nevertheless, the police must comply with a driver’s request to entrust the vehicle to another responsible and licensed driver if not otherwise prohibited by law.
4. Pat-down Searches
Even if the police do not have probable cause, they may stop and frisk a person when they reasonably believe that a suspect might be engaged in criminal activity, and that the suspect might be armed with a weapon and dangerous. Terry v. Ohio (1968). However, these searches are limited to a pat-down of the suspect’s outer clothing in order to determine whether he or she is armed. Importantly, once an officer is confident that no weapon is present, the frisk must end. State v. Dickerson (Minn. 1992). However, if an officer lawfully conducting a pat-down search sees or feels an item, and it is immediately apparent that the item is contraband, the officer may seize it.
In Minnesota, these same principles are used in evaluating the reasonableness of searches and seizures during traffic stops—even when minor laws have been violated. State v. Askerooth (Minn. 2004). Therefore, an officer may conduct a protective search for weapons of the passenger compartment of a vehicle if they reasonably suspect that the person stopped was engaged in criminal activity, and that the suspect may gain immediate control of a weapon.
5. School Searches
Courts have recognized that the school setting requires some easing of the restrictions to which the police are generally subject. School officials do not need to obtain a warrant prior to searching a student who is under their authority. Nor do school searches need to be based on probable cause. Instead, a search of a student is legal if it was justified from the start, and is reasonably related to the circumstances which justified the search in the first place. Specifically, a school search is justified from the start if there are grounds for suspecting that the search will uncover evidence that the student has violated either the law or school rules. A school search is considered reasonable if it is not excessively intrusive in light of the age and gender of the student (and nature of the violation). New Jersey v. T.L.O. (1985).
6. Arrests in Public Places
The police may arrest a felony suspect without an arrest warrant in any public place. This includes outside a suspect’s home, as long as the officers have probable cause. State v. Walker (Minn. 1998).
7. Objects in Plain View
Under the plain view exception to the warrant requirement, police may seize an object without first obtaining a warrant if three requirements are met. First, the police must lawfully be in the position from which they have a view of the object. Second, the officer must have a lawful right of access to the object. Lastly, it must be immediately apparent that the object is evidence of a crime. State v. Holland (Minn. 2015).
8. Warrantless Entries of Homes
As stated above, the home is considered the place where people enjoy the greatest expectation of privacy. However, the police are permitted to enter homes without first obtaining a warrant in order to provide immediate assistance during an emergency, prevent the escape of a fleeing suspect, or prevent the immediate destruction of evidence.
9. Consent
It is extremely important to remember that neither a search nor seizure needs to be justified at all if it is conducted with the voluntary consent of the affected party. As such, it is lawful for the police to enter your home if you voluntarily allow them to do so. Furthermore, other third parties may validly consent to a Fourth Amendment search of your property if they have common authority over the premises or thing sought to be inspected, mutual use of the property, or joint access or control of the property. This generally means that spouses may consent to a search of the whole premises, while roommates may only consent to a search of the common areas. However, where the co-occupant of a residence is present, and expressly refuses to consent, the police may not enter the home without a warrant. Georgia v. Randolph (2006).
Police almost always request consent to a search before carrying it out, as this is the easiest exception for them to obtain. If police request to search you or your property, remain calm and polite, but firmly refuse their request. However, if police search you anyway, do not resist. Evidence found unlawfully by police is not admissible against you, while resisting a search—even if that search was unlawful—may result in further criminal charges against you.
Contact an Attorney
Your privacy is important. While this article discusses some of the most common Fourth Amendment principles, your constitutional right against unreasonable searches and seizures is much more complex. Whether you have been tricked into consenting to a search or told that the evidence was in plain view, you are at risk of falling victim to police bias without a good criminal defense attorney. If you are being investigated for or have been charged with a crime, you should contact an experienced local criminal defense attorney to discuss your situation.