The Fourth Amendment of the U.S. Constitution is in place to protect citizens from unreasonable law enforcement searches and seizures. The Fourth Amendment was drafted in order to protect individual privacy interests. This interest is referred to as a person’s “reasonable expectation of privacy.” It is protected by the Amendment, which limits when and how the police may conduct a search of a citizen’s home, papers, effects, or physical being.

It is important to note that the Fourth Amendment only protects citizens against “unreasonable” searches. This means that “reasonable” searches may override a person’s Fourth Amendment protections. If no reasonable expectation of privacy can be found, the Fourth Amendment cannot protect a person from that search being conducted.

When determining whether a person had a reasonable expectation of privacy, courts will generally ask the following two questions:

  1. Did the person in question actually expect some degree of privacy?
  2. Is society willing to recognize that person’s expectations of what constitutes privacy?

If the answer to both of the above questions is yes, then the Fourth Amendment will likely protect that person’s privacy. The police will generally need probable cause as well as a search warrant before they may be allowed to invade a person’s reasonable expectations of privacy. Under certain circumstances, the police may conduct a search without a warrant. However, probable cause must always be present.

What Is a Search Warrant? What Is Probable Cause?

A search warrant is a court order signed by a judge that allows law enforcement to search a specific place, for specific objects or materials for the purpose of a criminal investigation. This generally includes areas such as a person’s home or office. In order to obtain a search warrant, police will need to first prove to a judge that they have probable cause to infringe on a citizen’s right to privacy.

Probable cause refers to the basis of belief that there is evidence in connection with a crime on that person’s property. The Fourth Amendment does not define probable cause. Rather, it is a term developed by judges and attorneys in order to assist in determining the reasonableness of a search. It occurs when the facts and circumstances of a situation are combined with a police officer’s knowledge and experience that leads them to believe that criminal activity is happening. In other words, probable cause could be considered to be somewhere above mere suspicion, but less than “beyond a reasonable doubt.”

Probable cause may be established in several ways. Some common examples include:

  • The officer’s own observations such as sights, sounds, and smells;
  • Circumstantial evidence; and/or
  • Information from informants, witnesses, and victims, especially statements regarding a suspect’s activity.

When Can Police Conduct a Search Without a Warrant?

There are a number of exceptions to the rule that states police officers must obtain a warrant by proving probable cause in order to conduct a search. Some common examples include but are not necessarily limited to:

  • Frisk Search: A police officer is allowed to briefly frisk a person’s outer clothing for weapons. This is a safety measure but does not mean that the officer can simply frisk search everyone they come in contact with in the name of safety. The officer still must point out specific facts that gave them a reasonable suspicion to stop the person in the first place. When frisking a suspicious person’s outer clothing for weapons, the officer may feel other items that cause them to be suspicious.

    • If the “plain feel” of these items makes it immediately obvious to the officer that the item may be illegal, they may seize those items. However, the officer is required to use the least intrusive means available to seize those items. The least intrusive means typically limits the officer to reaching into the suspect’s pockets;
  • Consent Search: A consent search refers to a person consenting freely and voluntarily to have the officer conduct a search. While the police have no legal obligation to inform the public that they may refuse to consent to a search, they may not coerce, trick, or intimidate someone into giving their consent.

    • An example of this would be an officer asking a person if they could come inside to take a look around. Of course the person can refuse the officer’s request, unless they have a warrant to search the premises. If the officer responds by saying they have lawful authority to search the premises and failure to allow them to do so will result in someone’s arrest, the search will likely be unlawful. The only person who can consent to a search is the person, or the person in control of the premises the police wish to search;
  • Plain View Doctrine: If the police are lawfully in an area, they do not need a search warrant in order to search for and seize any evidence that may be in plain view;
  • Search “Incident to Arrest:” Officers do not need a search warrant once a person has been arrested. The officer is allowed to search the person and the person’s surroundings. State interpretations of the area of immediate control may vary, but in general, anything within the suspect’s physical reach is considered to be fair game;
  • Search of a Motor Vehicle “Incident to Arrest:” Officers do not need a warrant to search the glove compartment of a vehicle if the person they arrest was a recent occupant of said vehicle. There are two additional circumstances: if it is possible for the arrestee to gain access to the vehicle, or to protect evidence that may be found within the vehicle;
  • Protective Sweep Following an Arrest: Following an arrest, officers may search for hidden accomplices by walking through a house in order to make a brief visual inspection. However, they must justify this search with a reasonable belief that there is actually a dangerous accomplice hiding on the premises; and
  • Emergency Exceptions: In general, police do not need a warrant to conduct a search when time restraints make it impractical.

Do I Need an Attorney for Searches Made Without a Warrant?

Although there are some circumstances in which a search warrant is not required for a legal search and seizure, it is crucial that your rights are protected and all searching parties are held accountable.

An experienced government lawyer can help you understand your rights and legal options, as well as represent you in court as needed.