It is one of the most misunderstood areas of the law, and one that most people rarely think about until they are thrust into an unexpected encounter with police, or other law enforcement authorities; namely, what rights do they have to protect themselves from an unwarranted search of their person or home, and subsequent seizure of personal property? It’s an issue that comes up more and more frequently in our highly security conscious society.
Surveillance cameras are seemingly everywhere these days, along with road check points, anti-terrorist and anti-gang vigilance, metal detectors, pat downs, and more. The odds of a random individual suddenly finding himself in a situation where a basic familiarity with federal search and seizure laws could come in handy have grown dramatically as a result.
The 4th Amendment to the US Constitution is the guardian of every citizen’s right to privacy. It’s conditions establish basic protections from unreasonable, unwarranted, government intrusions into their homes, businesses, property, and to their person. These provisions apply regardless of whether an individual is stopped while driving their car, on the street walking, as well as at their home, or place of business.
The most basic right you have in each of these circumstances is to simply refuse to consent to a search. It doesn’t matter whatsoever why a citizen chooses to refuse to consent to a search – and law enforcement agents are forbidden from conducting a search based simply on a person’s refusal to submit to one. Of course, this does not guarantee that the search will not take place, but it does establish, for the record, that if it does, it is happening against a person’s expressed wishes, which could prove to be quite important later. That’s when a judge will determine if the subsequent search and seizure took place legally, in-spite of your lack of consent
The established conditions under which law enforcement authorities may legally conduct a search and seizure require the presence of at least one of the following:
Search Warrant – this is an affidavit issued by a court of law authorizing a search of a person and property based on the presentation by a law enforcement agent of a probable cause to suspect a specific violation of the law will be discovered thereby.
Exigent and Emergency Circumstances – in which law enforcement personnel themselves can hear, or see a situation which compels a search.
Consent – in which the target of the search gives verbal permission for it to take place.
The Real World
The fact of the matter, though, is that police often find themselves in situations where they want to conduct a search and seizure that does not rigidly conform to guidelines governing them. Because of this reality often encountered in day to day patrolling situations, a number of nuanced exceptions to the basic search parameters have evolved, and the average citizen needs to be aware of these too.
One such exception is the “in plain sight” rule, in which illegal property may be seized if it can be seen by an officer during the course of a normal interaction with someone. If a police officer knocks on someone’s door, and when opened, the agent observes illegal items on a table in clear view, the officer may seize the material. It does not matter that he didn’t possess a warrant to conduct a search.
A corollary to this exception is one pertaining to physical searches of someone’s person. The guidelines for police to conduct a basic “pat-down” search of an individual are quite broad – but with a very specific caveat. A police officer may pat-down a person’s body, without a warrant or other probable cause, solely to determine if that person has a weapon which may pose a potential threat to the officer.
Many police officers contend that not only are they able to detect guns and knives in this way, but their experience also enables them to accurately determine, by feel alone, the presence of other items which are illegal, such as syringes, bags containing drugs, etc. Many seizures conducted under such circumstances have been upheld by courts under what has come to be known as the “plain feel” rule. So while the 4th Amendment establishes some clear privacy protections for citizens, the practical enjoyment of these have become a little less clear in the context of day to day law enforcement reality.
The bottom line for citizens wishing to protect their right against an unlawful search and seizure is to never consent to one under any circumstances. This may not prevent a search from taking place, but it does establish it took place against a person’s wishes, which is a strong defense against whatever develops from any subsequent intrusion.