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Search and Seizure Laws: What Are My Rights? Part I

The Law Site Provides an excellent source of information on the following topics:

Under Construction:

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests; search people and their property; and seize objects, documents and contraband (such as illegal drugs or weapons). These limits are the bedrock of “search and seizure law.”

Search and seizure law is constantly in flux and so complex that entire books are devoted to it

The Constitutional Background:

Search Warrants

This section describes search warrants and explains when they are and are not necessary.

What is a search warrant?

A search warrant is an order signed by a judge which authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of “the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.,” and direct the police to search for and seize “cash, betting slips, record books and every other means used in connection with placing bets on horses.”

How do police officers obtain search warrants?

Police officers obtain warrants by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath, called “affidavits,” which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that an affidavit establishes “probable cause” to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion. (See Chapter 19.) A sample affidavit for search warrant and search warrant are in the back of that chapter.

How much information do police officers need to establish that “probable cause” for a search warrant exists?

The Fourth Amendment doesn’t define “probable cause.” Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer’s subjective beliefs. The affidavits also have to establish more than a “suspicion” that criminal activity is afoot, but do not have to show “proof beyond a reasonable doubt.”

The information in the affidavit need not be in a form that would make it admissible at trial. (For example, a judge or magistrate may consider hearsay that seems reliable.) However, the circumstances set forth in an affidavit as a whole should demonstrate the reliability of the information. (Illinois v. Gates, U.S. Sup. Ct. 1983.) In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

    • a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
    • an informant who implicates herself as well as the suspect
    • an informant whose information appears to be correct after at least partial verification by the police
    • a victim of a crime related to the search
    • a witness to the crime related to the search or
    • another police officer.

Case Example 1: Hoping to obtain a warrant to search Olive Martini’s backyard, a police officer submits an affidavit to a magistrate. The affidavit states that “the undersigned is informed that Olive operates an illegal still in her backyard.”

Question: Should the magistrate issue a search warrant?

Answer: No. The affidavit is too vague, and does not identify the source of the information so that the magistrate can properly judge its reliability. “Probable cause” therefore does not exist.

Case Example 2: Same case. The affidavit states that “I am a social acquaintance of Olive Martini. On three occasions in the past two weeks, I have attended parties at Martini’s house. On each occasion, I have personally observed Martini serving alcohol from a still in Martini’s backyard. I have personally tasted the drink and know it to be alcoholic with an impertinent aftertaste. I had no connection to the police when I attended these parties.”

Question: Should the magistrate issue a warrant authorizing the police to search Martini’s backyard?

Answer: Yes. The affidavit provides detailed, firsthand information from an ordinary witness (without police connections) that indicates criminal activity. The affidavit is reliable enough to establish probable cause for issuance of a warrant.

What if a police officer makes a search under a warrant that shouldn’t have been issued in the first place?

In most situations the search will be valid. In U.S. v. Leon (1984), the U.S. Supreme Court ruled that if the police conduct a search in good-faith reliance on the warrant, the search is valid and the evidence admissible even if the warrant was in fact invalid through no fault of the police. The Court’s reasoning is that:

  • it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
  • the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake, this should not, therefore, be grounds to exclude evidence.

For example, assume that a judge decides that an affidavit submitted by a police officer establishes probable cause for the issuance of a warrant. Even if a reviewing court later disagrees and decides that the warrant shouldn’t have been issued in the first place, the officer’s search in good-faith reliance on the validity of the warrant will be considered valid, and whatever the search turns up will be admissible in evidence. If, however, the warrant is issued on the basis of statements in the affidavit that the police knew to be untrue or which were recklessly made without proper regard for their truth, the evidence from a search based on the warrant may later be excluded upon the proper motion being made by the defendant.

Case Example 1:

      Officer Furlong searches a residence for evidence of illegal bookmaking pursuant to a search warrant. The officer obtained the warrant by submitting to a magistrate an affidavit containing statements known by the officer to be false.

Question: Is the search valid because it was conducted pursuant to a warrant?

Answer: No. By submitting a false affidavit, Officer Furlong did not act “in good faith.” The search was thus improper, and whatever it turned up is inadmissible in evidence.

Case Example 2: Officer Cal Ebrate stops a motorist for a traffic violation. A computer check of the driver’s license reveals the existence of an arrest warrant for the driver. Officer Ebrate places the driver under arrest, searches the car and finds illegal drugs. It later turns out that the computer record was wrong, and that an arrest warrant did not in fact exist.

Question: Are the illegal drugs admissible in evidence against the driver?

Answer: Yes. The officer acted in good-faith reliance on the computer record. The seizure was therefore valid even though the record was wrong. (Arizona v. Evans, U.S. Sup. Ct. 1995.)

If the police have a warrant to search my backyard for marijuana plants, can they legally search the inside of my house as well?

No. The police can only search the place described in a warrant, and usually can only seize whatever property the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can only seize items listed in the warrant. Should police officers come across contraband or evidence of a crime that is not listed in the warrant in the course of searching for stuff that is listed, they can lawfully seize the unlisted items.

“Well, Look What We Have Here”

The rule that police officers can seize items not listed in a search warrant in the course of searching for the stuff that is listed creates obvious disincentives for police to list all the items they hope to find. For example, perhaps a police officer suspects that a defendant carries a weapon, but can’t establish probable cause to search for it. No problem. The officer can obtain a search warrant for other items, and then seize a weapon if the officer comes upon it in the course of the search. The defendant’s only hope of invalidating the seizure of the weapon would be to convince a judge that the officer did not just happen to come across the weapon, but in fact searched for it.

The police had a warrant to search a friend I was visiting, and they searched me as well. Is this legal?

No. Normally, the police can only search the person named in a warrant. Without probable cause, a police officer cannot search other persons who happen to be present at the scene of a search. However, if an officer has reason to suspect that an onlooker is also engaged in criminal activity, the officer might be able to “frisk” the onlooker for weapons. (See Section VI, below.)

If a police officer knocks on my door and asks to enter my dwelling, do I have to allow the officer in without first seeing a warrant?

Technically, no. A person can demand to see a warrant, and unless the officer has one can refuse the officer entry. However, people sometimes run into trouble when they “stand on their rights” and demand to see a warrant. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to conduct a warrantless search or make a warrantless arrest. People are right to ask to see a warrant. But if an officer announces an intention to go ahead without one, a person should not risk injury or a separate charge of “interfering with a police officer.” A person should stand aside, let the officer proceed and allow a court to decide later whether the officer’s actions were proper. At the same time, the person should make it clear that he or she does not consent to the search. If the police are not in a frenzied hurry, an individual might ask the police officer to sign a piece of paper acknowledging that “this search is conducted without the consent of ….” Otherwise, an individual might yell, “I do not consent to this search!” loud enough for others (potential witnesses if the matter comes before a judge) to overhear. (For more on consent searches, see Section III, below.)

“Knock and Notice” Laws

Statutes in some states require police officers searching pursuant to warrants to knock on suspects’ doors and announce that they are police officers before breaking into a residence. However, such statutes are not constitutionally required; states need not require “knock and notice” in every instance. On the other hand, state laws may not authorize no-knock entries for a broad category of searches, such as searches involving drugs. (Richards v. Wisconsin, U.S. Sup. Ct. 1997; Wilson v. Arkansas, U.S. Sup. Ct.

“Knock and Notice” Laws

Statutes in some states require police officers searching pursuant to warrants to knock on suspects’ doors and announce that they are police officers before breaking into a residence. However, such statutes are not constitutionally required; states need not require “knock and notice” in every instance. On the other hand, state laws may not authorize no-knock entries for a broad category of searches, such as searches involving drugs. (Richards v. Wisconsin, U.S. Sup. Ct. 1997; Wilson v. Arkansas, U.S. Sup. Ct.)

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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