Rights During Police Searches
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SEARCH AND SEIZURE
This document tells you the following:
- What protections does the Fourth Amendment of the U.S. Constitution provide?
- What is a search warrant and how can a police officer get one?
- Who may an officer detain while executing a search warrant?
- What are the exceptions to needing a search warrant?
- What is "individualized suspicion" and what does it mean?
- How does the Fourth Amendment protect you from wiretapping?
- What is an "investigative warrant" and what are the requirements for obtaining one?
SEARCH AND SEIZURE
The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures.
Fourth Amendment (1791)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Generally, the police must first have obtained a search warrant from a judge. Some searches are legal without a warrant, but what constitutes an illegal search can be very confusing and complicated. Only an experienced attorney can accurately explain whether a particular search is legal.
The method for obtaining a search warrant is very similar to that for obtaining an arrest warrant. To issue a search warrant, the judge must be given facts under oath. These facts must show probable cause to believe that certain illegal items will be found in the place to be searched. The items and the place that is to be searched must be specifically described.
An affidavit for a search warrant is shown below.
Affidavit and Complaint for Search Warrant
Georgia, _________________ County
CITY OF __________________ , GEORGIA
Before _______________________________ (Name and Title of Person before whom affidavit is made)
The undersigned being duly sworn deposes and on oath says he has reason and probable cause to believe that certain property, namely __________________________________________________________
is now being unlawfully concealed in and upon the premises known as _________________________________
located in the City of ______________________ , ______________________ County, Georgia, in the custody or control of ______________________________ and that deponent does verily believe and has probable cause to believe from facts within his knowledge as set out herein that the property heretofore described is kept and concealed in and upon said premises in violation of the laws of the State of Georgia and for the purpose of violating the same. The facts tending to establish affiant's reason for belief and probable cause for belief are as follows:
This affidavit and complaint is made for the purpose of authorizing the issuance of a search warrant for the person or premises described above.
Sworn to before me and subscribed in my presence this _______ day of ________________________ , 20 _____
________________________________________ Signature of Affiant
Signature and Title of Officer before whom affidavit is made ___________________________________________
A search warrant is shown below.
GEORGIA, __________________ COUNTY
(name of Peace Officer making complaint)
and to all and singular the Peace Officers of the State of Georgia,
The foregoing affidavit and complaint having been duly made before me and the same, together with the facts submitted under oath contained therein having satisfied me that there is probable cause to believe that the property described therein is being unlawfully concealed in and upon the premises described therein of _____________________
YOU ARE HEREBY COMMANDED to enter and search said described premises, serving this warrant, and if the property described or any portion of it be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me within 10 days of this date or some other judicial officer, as required by law.
Given under my hand and seal this _______ day of ______________ ,
at _______ O'clock ___ M.
In the execution of the search warrant, the officer executing it may reasonably detain and "pat-down" any person in the place at the time in order to protect him- or herself from attack or prevent the disposal or concealment of any instruments, articles, or things described in the search warrant. A pat-down involves the patting down of a person's outer clothing to discover a potential weapon or other object that could cause harm.
Exceptions to a Search Warrant
Although the Fourth Amendment declares the need for a search warrant, there are a number of general exceptions to the requirement.
These exceptions relate to searches and seizures that occur:
1. incident to (related to) a lawful arrest.
2. when an officer observes, in "plain view," property that has been reported stolen or is contraband or otherwise illegal. (Contraband is something a private citizen cannot legally possess.)
3. when an officer has to take immediate action (referred to as "exigent circumstances').
4. when an individual consents to the search.
Exception 1. In this exception, the search must occur in conjunction with a lawful arrest. The arresting officer can then search the person and the immediate area around him or her. The reasons for this exception are obvious. The police officer needs to know that the person is not armed. Furthermore, it is important that any evidence concealed on that person be seized to prevent it from being destroyed. However, if the arrest turns out to be unlawful, then a search under this exception will also be considered illegal.
Exception 2. This exception arises when a police officer sees an item or items that are illegal, such as stolen goods, in plain view. This exception is based on the notion that there is no intentional search if the officer has accidentally discovered the illegal item among other items visible to him or her. The officer must also have a legal right to be in the place where the search or seizure occurs. The items must be obviously illegal.
Considering these criteria, do you think the following examples would be exceptions to the requirement for a warrant?
SITUATION 5 A police officer stops a car for a traffic violation. The driver is 16. The officer sees opened beer cans on the car floor.
SITUATION 6 A person is stopped for speeding. The officer then asks the driver for a registration slip and proof of insurance. The driver opens the glove compartment to get the information. The officer sees several unusual rings and bracelets inside. She recognizes them as jewelry reported stolen by a local celebrity.
SITUATION 7 A traffic officer stops a driver for running a red light. The officer notices a strong smell of marijuana in the car. He searches the car and finds marijuana in the trunk.
If a vehicle is stopped by the police for a valid reason, then whatever the officer sees while conducting official business can be seized. This seizure is part of the plain view doctrine. In situation 5, the officer could seize the beer. He could take the underage driver into custody for possessing it.
In situation 6, the traffic officer had the right to stop a vehicle and ask to see proof of registration and insurance. The jewelry was not in plain view. It was only visible after the driver opened the glove compartment. However, the courts have approved this type of seizure, too, because stopping the car was lawful. Further, it was the driver who opened the glove compartment, not the officer, and he did so on his own accord, not at the request of the officer.
Situation 7 brings up the "automobile exception" to the general requirement for a warrant to search private property. This exception exists because an auto, unlike a house, can be moved out of reach of the law fairly easily.
The courts have long said that when a vehicle is stopped for a legal reason, the police can search the area within arm's range of the driver without a warrant, provided there is probable cause and not just a hunch that further wrongdoing is suspected (for example, that drugs are involved) or if the driver is arrested so that the search is incident to a lawful arrest. In Situation 7, the trunk could not be searched under the circumstances unless the officers were given express permission. However, there is one caveat. If the car had to be impounded, the trunk could be searched for the purpose of conducting an inventory of the contents of the car.
Even closed containers found within a car can be searched. However, a general rule applies to all searches regardless of the circumstances.The size of the place or thing that the police search must be able to contain what they are looking for. For instance, if the police are looking in a van for illegal aliens, they cannot seize a briefcase and search it.
Exception 3. The following situation illustrates this exception:
SITUATION 8 An officer sees an armed robber holding up a drugstore, taking money and drugs. The robber leaves by foot. The officer initiates a chase. Bolting around a corner, the robber dis-appears into an old house.
Will the officer have to get a search warrant? If so, won't the robber have time to destroy or hide the evidence?
The third exception to the warrantless search and seizure involves "exigent circumstances" (emergency situations). Exigent circumstances occur when there is not time for the officer to obtain a warrant, as when there is a bomb threat, or as in situation 8, when police are chasing someone who has just committed a crime.
Exception 4. This exception occurs when an individual consents to a warrantless search or seizure. Consent searches are valid, but the state must prove that consent was freely and voluntarily given. To make this determination, the court looks at the entire circumstances surrounding the consent, including
- the age, education, intelligence, and length of detention of the accused;
- whether the accused was advised of his or her constitutional rights;
- the nature of questioning, especially when it is prolonged;
- and the use of physical punishment, if any.
- The psychological effect that these factors may have had are examined as well.
Let's look at some examples to understand this fourth exception. In State v. Westmoreland, the defendant had agreed to a search after asking if the officer had a search warrant and being told that one was not necessary. 204 Ga. App. 312, 418 S.E.2d 822 (1992).The court found that this situation did not constitute voluntary consent.
In another case, Springsteen v. State, the court held that consent may be limited to what the consenting party wishes. 206 Ga. App. 150, 424 S.E.2d 832 (1992).The search may not exceed its reasonably understood limits. Also, the consenting suspect does not need to "call a halt" when the search goes beyond the limits that were set.
It is up to the state to prove that the officer did not exceed the permission that was given. However, in McNeil v. State, the court found that the defendant's consent for police officers to search his person for weapons and needles permitted the officers to turn his pants pockets inside out. 248 Ga. App. 70 (2001).The court concluded that this search did not exceed the permission granted by the defendant.
The case of State v. Corley involved the search of a truck by a police officer. 201 Ga. App. 320, 411 S.E.2d 324 (1991).The officer had obtained the owner's consent to search. In the course of the search, the officer opened a closed drawstring bag lying on the front seat. The court found that this action had exceeded the scope of the consent.
Consent by minors has also been an issue in some cases. The court has held that a minor's consent is not automatically invalid. A determination of validity is made by considering the circumstances under which consent is given. The court must look at whether a minor was old enough to use minimal discretion. Also, did the police act reasonably in deciding that the minor had control enough over the premises to give the consent?
In Davis v. State, a 10-year-old boy gave consent for police to search his parents' bedroom. 262 Ga. 578, 422 S.E.2d 546 (1992). The youth was routinely home alone after school, with instructions not to invite friends over during those hours. The court looked at his level of maturity and understanding of consequences. It determined that his regular access to the house did not give the boy sufficient authority for the consent. The court held that young children are not able to understand and waive their own rights. How can they then understand and waive those of their parents? The boy clearly did not know the consequences of his actions in allowing the warrantless bedroom search.
In Rainwater v. State, however, the court found that a 15-year-old could give valid consent to search. 240 Ga. App. 370 (2000). In this case, the teenager called the police, saying that her brother and parents used and sold narcotics at their residence. The teen gave a police officer permission to search the yard of the family home, where a bag of marijuana was found. In upholding the search, the court found that the teen's age, almost 16, coupled with the fact that she had called the police and was a resident of the home, permitted her to give valid consent to search the yard.
In the following situations, would you consider that valid consent has been given?
SITUATION 9 A policeman asks a suspect if he can search the trunk of the car. The suspect doesn't respond verbally, but she gives the officer the key.
SITUATION 10 A police officer arrests a suspect outside a bar. The officer asks if the police can search the suspect's apartment. The suspect, thinking he must comply, says, "Yes."
SITUATION 11 Joe, a suspect, is 16. The police ask his father if they can search his car. It is parked in the father's driveway. The father says, "Yes."
SITUATION 12 The principal has reason to suspect that a student has contraband in her locker. He searches the locker.
Regarding situation 9, Georgia courts have held that a person does not have to verbally agree to a search. Agreement can be made through actions alone.
The police do not have to inform individuals of the Fourth Amendment right to refuse a search. This determination differs from what is required under the Miranda ruling. The search in situation 10 would be valid.
Can a suspect's father (situation 11) consent to a search of the suspect's car? Yes, according to the Georgia courts. If a suspect's car is parked in his father's driveway, his father can authorize the search. What if the police thought the authorizing person was the suspect's father but he wasn't? A 1990 Supreme Court case suggests the search would still be valid. Recent court decisions have tended to give police more range in making decisions in searches.
Situation 12 poses a difficult question. A number of courts have ruled that if a school official calls in the police, then due process requirements must be met. What if school officials conduct the search?
In 1985, the U.S. Supreme Court held that school officials may conduct warrantless searches, but only if they have "reasonable grounds to believe that a student possesses evidence of illegal activity or activity that would interfere with school discipline and order." New Jersey, Petitioner v. T.L.O., 105 S. Ct. 733 (1985).
In the previous situations, the officers have had some suspicion that a particular person (or persons) was involved in some illegal activity. But what of the situations that follow? Are these searches legal?
SITUATION 13 A woman is flying to California. Before reaching the airplane gate, she, her purse, and her hand luggage must be inspected by a metal detector.
SITUATION 14 A man is returning to the United States from Panama. His luggage is searched at the airport when he arrives. Unknown to him, it is also "inspected" by a drug-searching beagle.
SITUATION 15 A woman is driving to a party. On the way, she is stopped at a police roadblock set up to find DUI drivers. The woman has not taken alcohol or drugs, but on the seat beside her is a box of fireworks, which are illegal.
Protection against searches without "individualized suspicion" is seen as being at the heart of the Fourth Amendment. However, in the searches in situations 13, 14, and 15, there is no evidence of suspicion.
Situation 13 illustrates enforcement of laws permitting airport searches of persons and luggage for possible weapons. The public has generally accepted this intrusion on its right to -privacy in the interest of safety. This search would be legal.
The right of customs officials to examine persons and luggage entering the country for contraband is long-standing (situation 14). Courts have also upheld the "warrantless" searches of luggage for drugs by trained dogs at airports.
The search in situation 15 would also be legal. In 1990, the U.S. Supreme Court expanded the range of "suspicionless searches" by approving the police use of "sobriety checkpoints." Michigan v. Rick Sitz, 110 S. Ct. 2481 (1990).
These checkpoints are roadblocks that the police can establish to halt traffic to discover if drivers are using alcohol or drugs. In such a stop, the police can legally search the area controlled by the driver.
Many people object to suspicionless searches such as sobriety checkpoints and drug testing. They argue that few people are caught and that their Fourth Amendment rights are violated. Those in favor say tests and checkpoints deter people from abusing drugs and alcohol. What do you think?
Wiretaps (Electronic Eavesdropping)
Should a search warrant be required to overhear an oral conver-sation? Is a conversation the same as an illegal drug, a gun, or a document? These three items can be seized physically. That is, they are tangible objects. A conversation is only made tangible by having it recorded.
Look at the question another way. How would you feel if government officers, without your knowledge and without a search warrant, listened in on and recorded your private telephone conversation? Would this action be a physical intrusion into your home? Should the Fourth Amendment protect you from such an activity?
For many years, the U.S. Supreme Court held that there was no need for a warrant as long as there was no physical intrusion. For example, a warrant would not be needed if a public telephone booth was bugged by a device (that is, a wiretap) attached to its back wall. The warrant would be unnecessary because there would be no physical intrusion into the inside of the booth.
The landmark decision of Katz v. U.S. readdressed this issue in 1967. 389 U.S. 347 (1967).In it, the U.S. Supreme Court declared that the Fourth Amendment protects people (and their conversations), not just the places where they are. This interpretation means that the Fourth Amendment generally protects people from the interception and recording of any oral statements.
An exception would be if one party to a conversation consented to the interception. Another would be if the conversation were held where there was no reasonable expectation of privacy.
Case of the Central City Drug Bust
Three Central City High School sophomores went to the mall one afternoon. The three-Sandra, Alan, and Jim-were approached by a 22-year-old woman. She offered to sell them grass (marijuana) and cocaine. Jim made a purchase.
After telling his friends he'd meet them later, Jim talked with the dealer, Daisy. He asked if he could become a seller at the high school. Jim was anxious to make some money. His bike needed repairs, and he wanted to buy some stereo equipment.
Daisy Dealer suggested that they return to the "drug warehouse." There, they could discuss the possibility with her supplier, Harry Wholesaler. They drove to an old, converted garage. They didn't know that the police had a stakeout on the garage. A raid was planned that afternoon.
Jim and Daisy were at the drug warehouse. They were talking with Harry Wholesaler. The police closed in on the warehouse within the hour. Jim, Daisy, and Harry were arrested. Note that in formal terms, Jim, as a juvenile, was "taken into custody" rather than "arrested." (See Juvenile Justice Subtopic of Criminal Law Topic.)
The police had a search warrant that permitted them to search the warehouse and Harry's and Daisy's persons. It was based upon the sworn affidavit of Detective-Sergeant Penny, who had been posing as a drug buyer. Visits to the warehouse gave Sergeant Penny precise details about what type of drugs would be there. This information was given to Judge Stern in the affidavit.
In this case, the arresting officers had neither an arrest nor search warrant citing Jim. Did they have the legal authority to search Jim?
This question is not easy to answer, and it is one that is often the subject of litigation in appellate courts. Generally, a person who is merely visiting premises that happen to be the subject of a search warrant cannot be searched unless the officer conducting the search believes he or she is armed and dangerous. In addition, the visitor's personal belongings (such as a backpack or a purse) cannot be searched if it is shown that the items belong to the visitor and the person is in fact merely a visitor as opposed to a party to the crime.
However, in this case, if the drugs were in open view and in close proximity to where the visitor (Jim) was standing, the officers, upon executing the warrant, may determine that Jim is more than a visitor and is a party to the crime. If he is arrested as a party to the crime, he can certainly be searched.
In the case of the Central City Drug Bust, the police had worked very hard to break up this illegal drug-selling operation. They were especially concerned because the drugs were being "pushed" to students in the local middle and high schools. The police wanted to be sure to make their arrests and searches in a lawful manner.
They did not want these offenders to get off because of a legal technicality later on at the trial. However, it is important to remember that what some people consider to be a technicality, others see as a constitutional safeguard.
* Excerpted from An Introduction to Law in Georgia, Third Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2001). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.