Police Searches with and Without a Warrant

It is important to know and understand your constitutional rights if you are ever stopped by law enforcement in Waxhaw, North Carolina. The Fourth Amendment of the United States Constitution protects individuals from unreasonable search and seizure by the government, including the police. This constitutional protection includes individuals and their property in places where they have a reasonable expectation of privacy, like their home or their vehicle. In short, unless law enforcement has a valid search warrant, they do not have the right to search or seize property unless one of six exceptions can be applied.

In simple terms, a warrant is an order signed by a judge that acknowledges that probable cause exists to search a particular area. The Fourth Amendment of the U.S. Constitution mandates that all warrants are supported by an oath or affirmation (i.e., a judge or magistrate), describe with specificity the place to be searched, describe with specificity the people or items to be seized.

Generally, challenges to search warrants and the evidence produced by them come about because the search warrants were impermissibly vague as to what place should be searched or what things police should be searched for. Going against the Fourth Amendment, the warrant gives law enforcement too much discretion. Consequently, any evidence obtained through such a warrant should be thrown out in court. Often times this is done by an attorney through a motion to suppress evidence. If the motion is granted, evidence obtained by police or other law enforcement cannot be used against the accused in court.

The other side of this issue is that the Fourth Amendment allows searches and seizures that are reasonable. This means that police may be able to override your privacy concerns and conduct a search of your person, property, or papers if they have probable cause to believe you committed a crime.

It is also possible for law enforcement to lawfully conduct a search in a situation where the expectation of privacy is not reasonable. Courts will generally use a two-pronged test to decide whether the defendant had a legitimate expectation of privacy in the place or the things searched by law enforcement at the time of the search and/or seizure. The test includes whether the person actually expected a degree of privacy and if the person’s expectation of privacy was objectively reasonable (i.e., recognizable by society).

Notwithstanding the requirements of a valid search warrant under the Fourth Amendment, there are certain scenarios in which a warrantless search is allowed under the U.S. Constitution. Whether or not the following warrant exceptions apply depends on the expectation of privacy in the particular circumstance.

• Plain view: If law enforcement is legally in an area – an important factor in this exception - and see evidence of a crime in plain view, a warrant is not necessary to seize that evidence;
• Consent: If someone gives police consent to search, and the police reasonably believe this person has authority to provide consent, a warrant is not necessary for a search and seizure of evidence;
• Motor vehicle: Police officers have the authority to search a vehicle without the need for a warrant if they have probable cause to suspect a crime other than the traffic offense for which you were originally pulled over;
• Hot pursuit/emergency: Certain emergency situations allow law enforcement to search without a warrant because those particular scenarios makes the officer’s goals more compelling;
• Search incident to arrest: Police officers are allowed to perform a warrantless search of an arrestee – including items within that individual’s immediate control – either during or immediately after a lawful arrest.
• Stop and frisk: If law enforcement has a reasonable suspicion – more than mere suspicion but less than probable cause – of a criminal act, they are authorized to stop that person and “frisk” or do a pat-down on the outside of the person’s clothing if they believe he or she is armed and dangerous.

If you or someone you know has been the victim of an illegal search and seizure in Waxhaw, North Carolina, contact the skilled criminal defense attorneys at Arnold & Smith, PLLC right away. Do not leave your freedom to chance. Our skilled defense attorneys can fight to suppress evidence illegally seized so that it is not used against you in court. Alternatively, if incriminating evidence was properly seized, we will fight to reduce or eliminate any charges brought against you.