In the last post, I covered the general procedure used to obtain and execute a search warrant. The basic rule is that warrantless searches–conducted by an agent of the government–are unreasonable, (and therefore unconstitutional).
Keep in mind that searches by family members, landlords, or other non-governmental persons are not usually covered under the fourth amendment.
Also, there is no right to complain about a search that violates somebody else’s privacy rights. A passenger in a car or a dinner guest in a home may have no right to complain about about a search of the that vehicle or home.
This rule against warrantless searches will always apply unless the case comes within a recognized exception. Here is a quick and dirty rundown of those exceptions:
A warrantless search and seizure may always be conducted when the police have obtained a voluntary consent to search. Consent may be given by any person who reasonably appears to have authority to give permission to search. You may give consent to search your pockets, your car, your house. Why you would do that is a mystery, but if the consent is truly voluntary, the search is legal. But you can always say “no.” The trouble may come in when your wife, roommate or parent gives permission while you are out. Ouch!
A search after arrest:
After a lawful arrest, the police may search the arrested person and the area nearby (within a few feet). This would include any accessible place in the passenger compartment of the car the arrested person was riding in before the arrest. NEW: Arizona v. Gant changes this. READ HERE. If the arrest takes place indoors, and other people may be around, police may make a quick sweep to determine if anyone is present who could help the defendant escape or pose a threat to the safety of the officers
Stop & Frisk:
If an individual is stopped upon a reasonable suspicion that he is involved in criminal activity (but not ARRESTED), a brief “frisk” or “pat-down” for weapons may be made if there is some reason to believe the person is armed and dangerous.
Next time I’ll cover more exceptions allowing warrantless searches. We’ll cover.
- Emergency circumstances
- Plain View Searches
- Administrative Searches
- Inventory Searches
- Automobile Searches