Search and Seizure

The laws surrounding police search and seizure can be complex, but it is important to understand your rights at least within the state where you live. Protection of your rights as regards search and seizure is set forth in the Fourth Amendment to the Constitution:

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.

Your rights in this amendment hinge upon the issue of ‘probable cause.’ The purpose of probable cause laws is to give a police officer reasonable justification for searching a home, car, or a person. Its simple meaning is that an officer has a precautionary duty to perform a search and/or seizure when circumstances indicate that a crime has been committed, is in the process of being committed, or is likely to be committed. In most instances a police officer may not search a person, car, or home or seize property unless the officer has:

• obtained a search warrant
• obtained an arrest warrant or
• a strong belief that an individual was about to commit a crime, has already committed a crime, or is in the process of committing a crime.

There are times when an officer has probable cause to perform search and seizure. For instance, the officer pulls over a driver for a minor traffic infraction and, when approaching the vehicle, smells marijuana smoke or sees drug paraphernalia in plain sight, or perhaps the driver’s or passenger’s behavior indicates that a crime may be in progress. In this case the officer has probable cause to search the vehicle and a search warrant is not necessary. Illegal search or seizure by an officer without permission or a warrant bars the use of that evidence at a trial. This is one more protection of the public’s rights so that if an officer does not follow strict performance of the law, then the citizen does not suffer the consequences.