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Searches and Seizures

Fourth Amendment Rights

The Fourth Amendment of the U.S. Constitution provides that 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.

Exclusionary Rule

If law enforcement believes a crime has been committed, based on information and belief, a search warrant must be obtained from a judge before a search can be conducted.  The judge will only issue a warrant if he/she is convinced that the search will lead to evidence in support of the alleged crime. Furthermore, the warrant must set forth specifically who, what, and where with regard to a search. For example, a judge issued a warrant for the lawful search of your home office only.  However, evidence was seized from a locked box in your bedroom during the search.  The evidence confiscated from the locked box would be inadmissible at trial under the exclusionary rule doctrine because it is considered fruit of the poisonous treeSilverthorne Lumbar Co. v. United States, 251 U.S. 385 (1920).  In other words, anything taken from a tainted source is tainted.

Weeks v. United States, 232 U.S. 383 (1914) was a Supreme Court case in which, by a unanimous decision, the Court held that the warrantless seizure of items from Weeks’ private home was in violation of his Fourth Amendment rights.  Weeks was a federal prosecution, and the exclusionary rule only applied to federal prosecutions at that time. It was not until Mapp v. Ohio, 367 U.S. 643 (1961), more than 46 years later, that the exclusionary rule applied to state prosecutions as well.

It is fascinating that the original 10 amendments of the U.S. Constitution has remained steadfast throughout the evolution of our modern society.  Do you think our forefathers could have anticipated what society would be like more than 200 years later?  Do you think they could have foreseen the types of assault weapons we have today when they adopted the Second Amendment (Right to Bear Arms)?

Secure in Their Persons, Houses, Papers, and Effects Defined

Warrantless searches and seizures are unconstitutional; however, there are exceptions in which the Fourth Amendment would not be violated:


You may have heard of the term “Terry Stop.” A Terry Stop gives law enforcement the authority to briefly stop and search a suspicious person and make reasonable inquiries with regard to those suspicions when an officer observes unusual conduct which leads him/her to reasonably conclude that criminal activity may be afoot.  Terry v. Ohio, 392 U.S. 1 (1968)

Houses, Papers, & Effects


If a police officer reasonably believes that the person granting consent to a search has the authority to do so, then a warrant is not required. The issue is not whether the person has actual authority, but whether the police officer reasonably believes the party consenting has the authority.

Plain View

Evidence is in plain sight of law enforcement officers; however, they must legally be in the location wherein the evidence can be seen in plain view.

Stop & Frisk

As mentioned above in Terry, the police are permitted to stop, and briefly search (frisk), a person provided they have a reasonable suspicion that a criminal act is, or is about to, occur.  The law enforcement officer can arrest a suspect with probable cause.

Search Incident to Lawful Arrest

A limited search of a person and their immediate surroundings is permitted for the purpose of locating dangerous weapons or a means to escape, or preventing evidence from being destroyed.  Law enforcement must show an actual and continuing threat to his/her safety and/or a need to preserve evidence.

Exigent Circumstances

Exigent circumstances exists when a situation requires immediate action, with probable cause, to act because the emergency situation outweighs the needed for a warrant.  Instances when a life is in danger, or evidence is compromised, would outweigh the need for a warrant.

Hot Pursuit

The hot pursuit exception permits law enforcement officers to follow suspects on, or in, private property when being pursued without a search warrant, even when the suspect has no connection whatsoever to the property.  This exception is also permitted when evidence can be destroyed or moved before a warrant can be issued.

Automobile Exception

The motor vehicle exception allows law enforcement to search a vehicle, upon probable cause, without a search warrant as long as he/she believes contraband is located in the vehicle.  The rationale of this exception is based on the premise that there is a lower expectation of privacy in motor vehicles. The mobility of an automobile presents an urgent need to prevent the removal of evidence.

The law is not black and white, but many complicated shades of gray. Take note of the underlined words in the above exceptions.  What does probable cause or reasonable suspicion mean?  I ask this rhetorically to demonstrate that one case may set a legal precedent or standard, but the Court may narrow, or broaden, the interpretation of the law when later presented with another case as noted above in Silverthorne, Weeks, and Mapp.  It was more than 46 years later when the Court expanded the exclusionary rule to also include state criminal prosecutions.

The Court of Last Resort

If you are displeased with your state’s appellate court ruling, you can ask (petition) the U.S. Supreme Court to hear your case. However, the Supreme Court is not obligated to do so.  The Court hears cases when there are conflicting decisions in the federal circuit courts, where there is precedential value, and cases which have been decided in either a U.S. Court of Appeals or the highest state court in matters of constitutional issues.  The Court generally accepts 100-150 of the 7,000 cases it is asked to review each year.

One of the roles of the U.S. Supreme Court is to protect the constitutional rights of its citizens, as well as the government’s interest, all while preserving the fundamental rights adopted in the Bill of Rights (Amendments 1-10) in 1791.  Over the years, the Court has had to interpret the authors’ intent behind the amendment, and set forth the legal standard when questions of law are presented, such as when issues of probable cause and reasonable suspicion must be defined within the context of the amendments and laws.

As you can see, the law and its application is quite complicated. If you have been arrested, consult with one of our attorneys immediately to protect and preserve your constitutional rights and to ensure you are given the due process our Constitution affords. You may call us at (704) 714-1450 for a free case evaluation and consultation.

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