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Warrantless Search & Seizure

“Unreasonable” Acts vs. Probable Cause for Searches & Seizures

“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 Fourth Amendment protects you from a search and seizure conducted without a warrant and probable cause. This is tricky because probable cause is completely subjective to the officer’s opinions at the time of your interaction with them. You may be completely innocent, but if an officer feels “off” about you and thinks you’re suspicious, they may use that as probable cause to search your property and seize evidence without a warrant.

Elements of Lawful Searches & Seizures

Several circumstances permit a legal warrantless search and seizure:

  • Exigent Circumstances: When there is probable cause to search and officers reasonably believe that contraband or other evidence may be destroyed or removed before a search warrant can be obtained.
  • Search Incident to Arrest: A warrantless search may be conducted incident to a lawful arrest. If there is probable cause to arrest you prior to the search and the arrest is lawful, an officer may conduct a warrantless search of your person and the area within your immediate control.
  • Vehicle Searches: Once the police have probable cause to believe there is contraband in your vehicle, they may remove it from the scene to conduct a search without a warrant.
  • Consent Searches: Fourth Amendment rights, like other constitutional rights, may be waived, and you may consent to the search of your person or premises by officers who have not complied with the Amendment.
  • Border Searches: The fact that a person or item has entered the United States from outside permits a border search with the reasonableness required by the Fourth Amendment.
  • Open Fields: The Fourth Amendment does not protect ''open fields,” meaning police searches in areas like pastures, wooded areas, open water, and vacant lots do not require a warrant and probable cause.
  • Plain View: Evidentiary objects falling in the ''plain view'' of an officer who has a right to be in the position to have that view are subject to seizure without a warrant.
  • Special Needs: The special needs doctrine provides an additional and less specific exception to the warrant requirement. Courts must undertake a context-specific inquiry, examining the closely competing public and private interests.
    • Prisons and Regulation of Probation: The Fourth Amendment element against unreasonable searches does not apply to a prison cell. Neither a warrant nor probable cause is needed for an administrative search of a probationer's home, either.
    • Drug Testing: No warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees.

If you encounter an officer who insists on searching your person or property, you have the right to refuse. Be careful though, because they may consider your refusal as resisting arrest, which may get you in deeper trouble.

However, police officers should know what they can and cannot do, so if you believe your Fourth Amendment rights were violated, please contact us immediately at (414) 882-8382 so we can fight for justice on your behalf. Attorney Cherella is dedicated to advocating for your best interests and will do everything it takes to achieve a favorable result. We look forward to hearing from you.