There is almost nothing Americans value more than their right to privacy. And that right is almost ironclad, thanks to the Fourth Amendment of the U.S. Constitution. But there are certain circumstances in which the government, mainly via law enforcement, has a right to invade your privacy, take your property and possibly use it against you.
In some cases, these searches can be illegal. It's best to identify the difference between a legal and illegal search so you can better protect your rights.
Searches of your home
First off, you should know that the Fourth Amendment protects you from unreasonable search and seizure of your own property such as your home, vehicle and cell phone. That means federal or state officials, such as law enforcement, cannot enter into or take your property without your permission. So if the police want to see, examine or take your property, they first must ask themselves this: do they have a legal reason to do so?
And you should ask them that too. It’s called probable cause: police must have valid reasons to stop and question you and/or take your property – reasons that go beyond a “hunch” that a crime has been or will be committed.
This is particularly important when it comes to the privacy of your home and residential property. Police cannot enter your home without your permission, except under rare conditions. But even if you say “no” police can override your Constitutional right to privacy in two main ways – during a public safety or other emergency, or with a search warrant they must first obtain from a judge or magistrate.
Searches conducted during public emergencies
Although every case depends on the facts, police often do have the right to check your home or vehicle during a public emergency. Unfortunately, we are becoming all too familiar with what that means – if there is an explosion, shooting or even a fire. Whether there is an actual event, or just a report of an event, police can search your property if they are trying to find a culprit or prevent a crime such as a shooting. But these instances are not common.
What is more common is that police seek to come into your home with your permission. You don’t have to give it. You can politely decline. Police can then seek a search warrant that will allow them to conduct the search. And they will tell you that in hopes you will agree to allow them in. Again, you do not have to agree.
They will then try to get a search warrant – and it’s not automatically given. To obtain one, police must show a judge or magistrate that there is reason to believe a crime has been or will be committed. The reasons may have come from their own investigations, or from an informant. They must put into writing specific details about what they are seeking, what areas of the home or property to be searched and how they plan to conduct the search.
Just because police have a warrant does not mean they can search every inch of your house. The warrant limits the areas of your home that can be searched. But if police see something illegal in any area of the home, as long as it’s in plain view and not hidden, they may seize it.
Without a search warrant or your permission to enter your house, police can still keep tabs on your property. They can watch, videotape or takes pictures of your home.
Searches of your vehicle
Many illegal searches concern motor vehicles. In fact, the most common instance when an illegal search and seizure comes into play is when you are pulled over while driving a motor vehicle.
For example, police may stop a driver for speeding. They question the driver and find that he or she has a valid license and registration. But instead of issuing a citation and letting the driver go, they bring a dog to sniff the car. Unless any drug paraphernalia is in plain sight, or if police smell drugs, they don’t have a probable cause to search your vehicle. Any drugs found in the car will be thrown out in court; the evidence cannot be used because it was an illegal search and seizure.
Police can search the car if they see or smell evidence of a crime. But their search cannot go beyond the areas to which you had access. For example, the driver has access to the front console and glove compartment, but not the back seats. A valid search would be limited to those areas.
That’s not to say that illegal items in other areas of your car, such as the trunk, will be ignored. If your vehicle is towed by police, it is searched from top to bottom to inventory its contents. If anything illegal is found, you could be facing more charges.
Police can ask you to step outside your vehicle and then frisk you only if they suspect you of a crime or of having contraband on your person, such as in your pockets. Again, if this happens, it’s best to speak to a lawyer as soon as possible to make sure your rights were not violated.
Searches of your cell phone
The Supreme Court is still trying to sort out how private cell phones are searched, but right now there is one hard rule. Police cannot force you to give up your password. In many cases, they can only use your cell phone to prove where you have been. Police may ask you to voluntarily give up your cell phone. If you are unsure what to do, speak to a lawyer first.
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