The Constitution of the United States of America Fourth Amendment protects us against unreasonable searches and seizures. However, this protection is only against searches and seizures conducted by government officials, including the police. A seizure is the arrest or detention of a person by the government or police. Often, courts will group unreasonable search and seizures as one, but an unreasonable search can occur without anyone being detained.

What is a Search?

A search is an inspection or physical invasion of a person’s reasonable expectation of privacy. Pat-downs and security measures like metal detectors and airport scanners can be used to search an individual. Generally, when we think of a search, we think of looking through a person’s property (like a house or car) to find evidence. You should understand that the term “search” is very broad. It can also be a phone tap, access to computers, or even observation of a home or GPS locator.

What is Reasonable?

When a person has a reasonable expectation of privacy, that expectation is subjective. That is to say, that an individual expects this location, or this activity, to be private. Typically, this expectation needs to be supported by what the public also recognizes as private.

For example, if Jody is in a busy restaurant and steps into a private room to make a phone call, there is a reasonable expectation of privacy. However, if Jody answers her cell phone at the table and talks loud enough for people around to hear, there is no privacy expectation. Similarly, if Jody is in a private room but still speaking loud enough for others to hear, Jody’s expectation of privacy is unreasonable outside of the room.

A person’s privacy depends on two things: (1) the behavior of the person – Jody speaking loudly on the phone; and (2) social point of view – Jody stepping away from others to make a phone call.

What is Unreasonable Search?

An unreasonable search occurs when law enforcement searches with no warrant and no probable cause. Probable cause exists when it is more likely than not that evidence of a crime can be found in the area that is being searched.

A search warrant is issued by a judge and gives police permission to search for specific evidence. Searches without an issued warrant are unreasonable under the Fourth Amendment, and any evidence found during these searches will most likely not be used against a defendant in court.

There are a few exceptions that allow officers to search without a warrant; they are:

  • When a person consents, freely and voluntarily, to their property being searched;
  • If the evidence is in plain sight of the officer, or public;
  • If police are chasing, or in “hot pursuit,” of a person;
  • When a person is arrested, officers may search their body and immediate surroundings (this is limited to the search of weapons);
  • Vehicles during a traffic stop when there is a reasonable belief that evidence or illegal items are present; and
  • Police do not need a warrant if they fear evidence being destroyed or people being harmed immediately.

Think about this: An officer believes Pat is selling drugs. Without a warrant, the officer enters Pat’s house, when Pat is not home and searches for the drugs. This is an unreasonable search, and any evidence found during will most likely be excluded in court. What about if Pat was home? It would still be unreasonable without a warrant unless Pat invited the officer inside or, if the officer approached the house, knocked, and noise from inside indicated illicit activity.

Do Police Have to Knock Before Entering a Home?

Traditionally, officers follow what is known as the “knock and announce” rule. This rule requires police issuing warrants to knock and make their presents and purpose known. Apart from the exceptions above, police may enter the property if no one answers the door after a significant delay. However, the entry must be necessary and reasonable, such as preventing evidence from being destroyed, not merely because no one is home.

What Are My Rights if Police Conduct an Unreasonable Search?

A violation of the Fourth Amendment on a criminal level would result in nothing more than the possible exclusion of evidence at trial. Keep in mind that some circumstances may still allow for evidence to be introduced, even if an individual right was violated. However, a claim can be filed against the police in civil court for damages. Yet, even a civil court win would not exclude, otherwise introduced evidence, in criminal court.

Do I Need an Attorney if I was Victim to an Unreasonable Search?

If you believe your property was unreasonably searched by police, without a search warrant, in violation of your Fourth Amendment right, you may need to contact a criminal defense attorney. A defense attorney will help you defend the charges brought against you and seek suppression of evidence you feel was illegally obtained.