Right to Privacy

4th Amendment: Search and Seizure

One of the most significant and frightening powers of the government is the authority over a citizen to conduct a search and seizure. The ability to search a person, dwelling, business or vehicle is an overwhelming and invasive police power that must be kept in check to avoid illegal and inappropriate invasions on the personal privacies and rights of the people.

The right to be free from unreasonable and illegal searches and seizures is protected by the Fourth Amendment to the United States Constitution. The Fourth Amendment sets forth standards that are required to be followed before a search of an individual or place may occur. A search may occur if based upon a valid search warrant or under circumstances that constitute an exception to the search warrant requirement. The issue of search and seizure arises most in our criminal law practice in cases that involve drug crimes, child pornography and stolen property.

Search and Seizure: Warrant and Warrantless Searches

With a Warrant: A search warrant may be obtained from an impartial magistrate or judge by a law enforcement official that is based upon reliable information showing probable cause. Information obtained from confidential informants (snitches) may also be used to support the issuance of a search warrant. The confidential informant is usually someone that the police have busted for a crime and is given a favorable deal in the court system to provide cooperation.

Without a Warrant: A search without a warrant may occur if the following legal circumstances exist:

  • Exigent Circumstances
  • Stop and Frisk
  • Search Incident to Lawful Arrest
  • Custodial Search
  • Plain View
  • Border Searches
  • Consent Searches
  • Probation Searches

Searches without a warrant are invariably controversial and the subject of abuse by law enforcement officers since they do not require any oversight by an impartial judge or magistrate.

Consent Searches: Warrant Not Required

A search warrant is not required if permission, or consent, is given to search your body, home or vehicle. The police may use unjustifiable means to get a party to provide consent. Among other tactics, the police may threaten to obtain a warrant or threaten to obtain the backup of a drug sniffing dog. Unfortunately, youthful individuals are more vulnerable and easily manipulated in these scenarios.

Plain View Searches: Warrant Not Required

A warrant is not required when a law enforcement is in a place where he or she has a right to be and discovers illegal property that is in plain view. A search made on the basis of "plain view" is supported by the legal principle of the Plain View Doctrine. The Plain View Doctrine gives a police officer the power to seize objects if he observes the object in plain view and has probable cause to believe that it is connected with criminal activities.

Plain view and consent searches occur most frequently after the police make a traffic stop and later have a hunch that the vehicle or passengers have drugs in their possession. When drugs are found, all of the passengers may be charged with the crime of "possession".

Plain view searches are subject to abuse by law enforcement officials and should be scrutinized. The police may claim that a search was made because an illegal object, such as drug paraphernalia, was seen in plain view even if it wasn't. A special hearing can be scheduled before trial to attack a search that is believed to be improper or unconstitutional.

Fruit of the Poisonous Tree: Suppression of Evidence

Improper searches can be attacked at any stage of criminal proceedings at the district or circuit court level. The Judge will determine if the police acted according to the strict standards of the Fourth Amendment in conducting a search with or without a warrant.

Once a successful attack is made regarding the search and seizure, the court may suppress the evidence seized pursuant to the legal doctrine known as "the fruit of the poisonous tree". The basis for this doctrine is that if the source of evidence is tainted, then anything gained from it (fruit/property seized) is as well.

Macomb County, Oakland County, Wayne County & St. Clair County

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