The Constiution and the 4th Amendment gives you the right to be free from Search and Seizure
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Search Warrants and Search and Seizure
The 5th Amendment to the Constitution guarantees the right to be free from an illegal search and seizure unless a warrant is issued from a neutral and fair magistrate. Normally a warrant will be issued only when there is probable cause to believe you have committed a crime. Under those circumstances, the police must go to a neutral magistrate, present their suspicions and evidence, and if the magistrate believes there is probable cause that a crime has been committed and you committed the crime, will then issue the warrant.
When a Search Warranty is Not Needed
There are certain circumstances, however, when the police do not need to obtain a warrant before a search.
If you consent to a search, no warrant is needed. So let’s say you are pulled over for a traffic violation and the police ask to look in your trunk, if you say, “No problem”, then anything the officer finds is admissible in court. Another example is if the police come to your home, ask to come in, and then ask if they can look in your closet. If you agree and they find something, they will use it against you. Often times, the police will ask if they can enter your home just to talk and once inside request a search claiming that since they are already in the home they don’t need a warrant. Or that if you don’t consent they will get a warrant. Or sometimes they will tell you that if you consent and tell them that you have illegal contraband and then let them retrieve it, they will go easy on you. All these statements are false. First, even if they are in your home, they cannot search without your consent or a warrant. Second, if they could easily get a warrant, they would have gotten one in the first place. Finally, if they do find something, you will be charged with a crime. In terms of going easy on you, they might not put the handcuffs on so tight.
The police can also enter your home and perform a search and seizure if they see something in plain view. For instance, let’s say you are growing pot and an officer walks by your home in a place the officer is allowed to be and sees the plant growing in your garden or in a planter on the balcony. Under those circumstances, the Officer can enter your home and seize the evidence. Or, similarly, let’s say, you invite an officer into your home and he sees a joint in an ashtray or you are pulled over in your car and the officer sees an open bottle of liquor on the passenger seat.
What are called “exigent circumstances” can also give rise to a search and seizure without the need to first obtain a warrant. So in some circumstances a police officer can have his own probable cause to enter your home and conduct a search. Let’s say the officer hears a gunshot and then sees you running down the street holding a gun and then sees running into your home. In that case the officer can enter your home, not only because he has probable cause but also to protect the safety of the community. Say a police officer sees you on the street buying drugs, the officer can then pat you down looking for the drugs because he has probable cause that you are possessing the drugs and the likelihood that the evidence will be destroyed if he doesn’t search immediately.
The police can also conduct a search if there is a reasonable belief that their safety might be in jeopardy. For instance, let’s say you are hanging out on the corner in a high crime area and the police have a reasonable suspicion, that you are involved in a crime (under these circumstances they don’t need probable cause but only a reasonable suspicion, a lesser standard). Decided in the case, Terry v Ohio, they can briefly detain you and ask questions. In addition, the officer, again having a reasonable suspicion that you are armed, can conduct a quick pat down to see if you are carrying any weapons which might threaten his or her safety. If they find contraband during this search, it can be used against you. However they must follow proper procedure. In one case, the police briefly detained an individual and then patted him down checking for weapons. During the pat down, the officer felt what he thought was a rock of crack cocaine in the suspect’s breast pocket. After moving down the legs of the suspect and declaring he had found no weapons, the police officer then returned to the breast pocket to seize the crack. The Court found this not admissible. The court ruled that if the officer had immediately taken the crack then it would be admissible but by finishing the safety search, the officer would then need a warrant to conduct a further search.
Search Incident to an Arrest, Automobile Exception, Inventory Search
An officer can also make a search incident to an arrest. Let’s say you have been pulled over in your car for a routine traffic violation and there is an outstanding warrant because you didn’t pay your last ticket. If the officer arrests you, he is allowed to search the inside of your car to make sure there are no weapons. Even if you are in handcuffs, sitting in the back seat of the patrol car, the officer is still allowed to search the passenger compartment and even the locked glovebox. And while the officer is normally not allowed under those circumstances to open your trunk, if the office has probable cause to think there is evidence which might disappear, then a search is allowed under the automobile exception. An administrative search can also be conducted, for instance, if you are arrested and your car to towed to the police station or impound. Under those circumstances, the police may conduct an inventory search so they can make sure that, once the car is returned, there will not be any disputes over missing items. They would also be able to search your impounded car to make certain, again, that there was nothing in the car that would threaten their safety.
Schmierlaw is a Criminal Defense and Drunk Driving/ DUI legal firm providing representation in Wayne County, Oakland County, Macomb County and throughout Michigan including these Michigan cities:
Law Office of James G. Schmier, PLLC
2222 Attard Street, Birmingham, Michigan 48009
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