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Rights During Police Searches

Authored By: Carl Vinson Institute
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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.

 

 

Search Warrant

GEORGIA, __________________ COUNTY

To ________________________________________

(name of Peace Officer making complaint)

and to all and singular the Peace Officers of the State of Georgia,

"GREETINGS":

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 ______________ ,

20 ______

at _______ O'clock ___ M.

_______________________________________________

Signature and Title of Officer Issuing Search Warrant

 

 

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.

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.  The "automobile exception" is an 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.

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 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.

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.

 

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).

Individualized Suspicion

In the previous situations, the officers have had some suspicion that a particular person (or persons) was involved in some illegal activity.

Protection against searches without "individualized suspicion" is seen as being at the heart of the Fourth Amendment.

The right of customs officials to examine persons and luggage entering the country for contraband is long-standing. Courts have also upheld the "warrantless" searches of luggage for drugs by trained dogs at airports.

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.

* 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.

Last Review and Update: Jul 30, 2004