The Fourth Amendment of the U.S. Constitution protects individual privacy interests by preventing unreasonable searches and seizures conducted by law enforcement. A person’s privacy interests are referred to as a person’s reasonable expectation of privacy, which the Fourth Amendment protects by limiting when and how police can conduct a search of a citizen’s:

  • House;
  • Papers;
  • Effects; and/or
  • Physical person.

However, the Fourth Amendment only protects people against “unreasonable” searches; what this means is that “reasonable” searches can override a person’s Fourth Amendment privacy concerns. Generally speaking, the police need two things before they can invade a person’s reasonable expectation of privacy. This would be probable cause, and a search warrant issued by a judge specifying the details of the search.

There are some circumstances in which the police can conduct searches without a warrant.
An example of this would be how if no reasonable expectation of privacy exists, the Fourth Amendment cannot protect that search. In order to determine whether a person had a reasonable expectation of privacy, courts will consider whether the person actually expects some degree of privacy, as well as whether society is willing to recognize that person’s expectation of privacy.

What Is A Search Warrant?

A search warrant is an order signed by a judge, allowing police officers the right to search a specific place for specific objects or materials associated with a criminal investigation. Search warrants most commonly include areas such as a person’s home or apartment.

In order to have a search warrant issued, the requesting office must prove that “probable cause” exists. This means there must be some basis for the belief that evidence is connected with a crime on the property.

It is important to note that the Fourth Amendment does not define probable cause; rather, it is a term developed by judges and lawyers to assist in determining the reasonableness of a search. Probable cause exists when the facts and circumstances of a situation, combined with a police officer’s knowledge and experience, leading them to believe that criminal activity is occurring. In other words, probable cause can be considered to be above a suspicion, but less than beyond a reasonable doubt.

Generally speaking, when a police officer seeks a search warrant and their probable cause is mistaken but made in good faith, the search would still be considered valid and reasonable.

Can Police Seize Books, Documents, Or Other Papers Not Listed In A Search Warrant?

Police can seize books, documents, or other papers not listed in a search warrant. Although the Fourth Amendment requires search warrants to specifically describe what items can be seized, an officer may seize any item that they feel is associated with the crime that is being investigated. Additionally, some courts allow officers to seize documents related to any criminal activity at all. Any documents that were used to carry out criminal activity can automatically be seized, regardless of whether they are listed in a search warrant.

Generally speaking, police officials are limited to seizing documents that relate to some form of criminal activity. As such, most courts officially describe this limitation as a “nexus” between the document being seized and the crime being investigated.

What Documents Do And Do Not Form A Nexus With A Crime?

In general, any document can form a “nexus” between itself and the crime in question. Some of the most common examples of a “nexus” that have been applied in the courts include:

  • A newspaper article describing the crime being investigated;
  • Checks, bills, and receipts;
  • Various letters and correspondence;
  • Diaries and journals;
  • Traffic citations; and
  • Calendars.

It is imperative to note that, along with proving a “nexus” between the document and the crime, police officers must also show probable cause. What this means is that the document must be suspicious enough when seen to constitute searching it. An example of this would be how if a notebook has a title on the cover stating, “Explosive Diagrams,” officers have reasonable cause to search it. Alternatively, something with no title on the front may not warrant a search.

If the document was actually used to commit a crime, it can automatically be seized. An example of this would be how if someone is being investigated for stealing computer trade secrets, a diagram of a top-secret computer device can be seized even if it is not described in the warrant.

Documents that are in plain view do not require proving a “nexus.”. When police have a warrant to search an area, anything that can be seen just from observing the area can be seized. However, officers must still show probable cause in order to seize the documents. Additionally, these documents must have been found inadvertently, meaning that officers cannot devote their time looking for documents not listed in the search warrant.

Keep in mind that state laws may allow officers to seize documents not listed in a search warrant. In these states, police officers have full authority to take such items.

When Are Search Warrants Considered To Be Illegal?

There are circumstances in which a search warrant is invalid or illegal, and if a search occurs based on the use of the illegal warrant, the search will generally be unconstitutional. A search warrant may be considered illegal if the search warrant was obtained without the proper probable cause, or if the search warrant does not state or list the time, place, and items that are to be searched with specificity.

When the search warrant is considered to be illegal, the evidence that is gathered from the search warrant is not likely to be used against the defendant during a trial or to charge them with a crime. This means that if the police obtained evidence without a warrant or were illegal, the items seized cannot be used as evidence in a criminal court of law against you.

If you believe that your privacy rights were violated, and you suffered losses or harm due to the violation, it is possible to sue the police for the violation. However, this is a considerably complex legal situation and generally requires the assistance of a lawyer.

There are certain searches that do not require a search warrant. Some examples include, but may not be limited to:

  • Consent: A warrant is not required when a person who is in control of the property gives consent for the search;
  • Pursuit Of a Felon: A warrant is not required in order to prevent a felon’s escape or ability to harm others;
  • Imminent Destruction of Evidence: This refers to when evidence might be destroyed before a warrant can be obtained;
  • Emergency Searches: If someone is heard screaming, yelling, or calling for help, police do not need to obtain a warrant beforehand;
  • Search Incident To Arrest: This would be to mitigate harm to the arresting officers
  • Public Safety: A warrantless search may be permissible in emergency situations in which the public is in danger; and/or
  • Plain View: To reiterate, this refers to evidence that is in plain view from a lawful vantage point. In plain view cases, the officer must be legally on the premises with a legitimate vantage point, and it must be immediately obvious that the evidence is contraband.

Do I Need A Lawyer For Help With Seizure Not Listed In A Search Warrant?

If you feel that police officials have wrongfully taken your personal documents, you should contact a criminal defense attorney immediately. Your lawyer can help you understand your legal rights and options according to your state’s specific criminal evidence laws, and will also be able to represent you in court as needed.