Unlike other countries, the U.S. Constitution contains specific language protecting all U.S. citizens from unreasonable searches and seizures.
A law enforcement officer must first obtain a search warrant, signed by a judge or magistrate, before entering your property to look for evidence of a crime. The officer can then search any personal property, homes, papers, and your person to find evidence of the alleged offense.
The 4th Amendment to the U.S. Constitution protects citizens from any unwanted intrusions.
It reads:
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.
The 4th Amendment is part of the “Bill of Rights,” making up the first 10 Amendments to the Constitution. The founding fathers feared that the government could suspend your rights and privacy by searching your property at will and with no limitations.
Today, your property could also include your emails, computer, cellphone, and any digital property you retain.
The 4th Amendment is intended to enforce the notion that your home is your castle, and you should not be subject to seizure of your property or an unreasonable search by the government.
The probable cause of a crime must be part of a search warrant application submitted to a judge for review, which is necessary before any search.
A Search Warrant
A search or seizure will generally be considered unreasonable and illegal without a warrant.
Originally, the warrant was supposed to be in writing; however, today, that requirement has been updated to include a telephonic transmission of a warrant when there is a time crunch.
The warrant should include the probable cause or a “reasonable belief that evidence of a crime will be found in the place to be searched.”
This affidavit written by the officer, who is placed under oath, is then presented to the judge, who must be convinced that there is enough substantial evidence to support the search warrant. The search warrant will also specify which property, where, and the items they suspect they’ll collect.
The judge is supposed to be a neutral third party and should only sign the warrant when there is just cause.
If the search warrant is too broad, the judge may hesitate to sign it, being mindful of the restrictions of the 4th Amendment. If it is signed, the police can then act on the search. They generally have up to two weeks to launch the property search.
Exceptions to a Search Warrant
There are exceptions to a search warrant. For example, if an item is in plain view, a search warrant may not be needed. Also, if the homeowner consented to the search of the home, or if he was just arrested, there may be no requirement for a warrant.
If you are being arrested, police can pat down your person to check for weapons or contraband without a search warrant.
There is a fine line, and if law enforcement conducts a warrantless search and seizure, the evidence may not be admissible at trial. The court will have to balance the degree of intrusion with the right to privacy.
For example, if the search is supposed to find a large stolen item and searchers looked in a desk drawer too small to hold the article, that could be considered beyond the warrant’s scope and may be thrown out.
Electronic surveillance and wiretapping is a controversial use of 4th Amendment freedoms and are the subject of much litigation. You may have less of a claim to privacy if a company uses the computer to conduct business than your personal computer.
Your Alabama Criminal Defense Attorney
Jason Darley is an experienced criminal defense attorney prepared to protect your rights if you have been subject to an unreasonable search and seizure.
If you believe your rights have been violated, or if the police did not properly issue the warrant, contact his Mobile office to explore your options during this critical time at (251) 732-7058.
Sources:
Justia
https://law.justia.com/codes/alabama/2014/title-15/chapter-5
Cornell Law
https://www.law.cornell.edu/constitution/fourth_amendment