The Fourth Amendment, which bans unreasonable searches and seizures, was a direct response to an English abuse of power. In colonial Georgia, British officials used writs of assistance instead of search warrants, to “assist” customs officers who were looking for smugglers. A writ of assistance was basically a blank search warrant which was valid at any time and even transferrable.
Therefore, if a search is reasonable, officers don’t need search warrants. Reasonable cause, or probable cause, is a vague phrase that has never been legally defined. A DUI stop is a good illustration. Officers must have probable cause to demand a breath or blood sample. Poor performance on the walk-and-tun and other Field Sobriety Tests usually constitutes probable cause. That “poor performance” could be a minor technicality, like starting the test with the wrong foot. But at this point, the officer’s subjective opinion is all that matters.
Probable cause to search is different. Probable cause only exists if the facts fit neatly into one of the search warrant exceptions courts have carved out over the years. If a Marietta criminal defense attorney invalidates the probable cause, the seized evidence, whether it’s physical or non-physical, like a confession, is inadmissible. At that point, the state’s case essentially collapses. Without overwhelming evidence, it’s nearly impossible to convict any defendant beyond a reasonable doubt.
Search Incident to Arrest
Once upon a time, police officers routinely “arrested” suspects for speeding and other minor infractions, just so they could thoroughly search their vehicles. If the search revealed nothing, the officer un-arrested the defendant.
A 2009 Supreme Court case, Arizona v. Gant, eliminated these suspicion searches. Now, if officers arrest suspects, they may only pat them down for weapons, as outlined below. The Justices probably thought this ruling would eliminate suspicion searches. Instead, it merely gave them new life.
Some officers basically ignore Gant and conduct exhaustive searches, hoping to find hidden contraband. If an attorney successfully gets the seized evidence thrown out of court, officers tell their supervisors that the bust was good, but the lawyer found a technicality. Officers neglect to mention that the “technicality” was the Bill of Rights.
Other officers threaten arrest, which includes a search, unless the defendant gives consent. That coercion might convince a defendant to provide consent. But this “yes” might not hold up in court.
Owners, or apparent owners may give consent to search their backpacks, smartphones, cars, houses, or any other property. An apparent owner is a person like a roommate who is not on the lease. That general principle is rather straightforward. But the devil, as they say, is in the details.
In the context of ongoing coronavirus vaccinations, the National Institutes of Health, relying in part on an 1891 Supreme Court decision, recently outlined the legal requirements of consent:
- Full: Defendants must give full consent to search. If Frank says officers can search his car but they cannot look in the glove compartment, they cannot look in the glove compartment. Of course, this statement probably means that Frank is hiding something there, which means officers might have reasonable cause to take a peek.
- No Duress: Physical coercion is obviously duress. But suppose officers ask to search Frank’s car, he refuses, they threaten to get a warrant, and he consents. Arguably, officers used duress to obtain that consent. Incidentally, the “let us search or we’ll get a warrant” line is usually an empty threat. If officers had probable cause for a warrant, they probably wouldn’t ask for permission to search.
- Reasonably Informed: Doctors must obtain informed consent. The patient must be aware of all possible risks and side effects. Officers do not need informed consent. But the defendant must be aware of the general consequences.
This 1891 case was O’Brien v Cunard SS Co., which is a law school classic. Ms. O’Brien was a shipboard immigrant who stood in line for a shot and raised her arm but didn’t say or sign anything. The Justices ruled that she could not claim the doctor gave her a smallpox vaccine without her consent.
Once again, the general principle is straightforward. If officers see drugs, weapons, or other contraband in plain view, they may seize it without a warrant.
This exception depends on reasonable suspicion of criminal activity, which is basically an evidence-based hunch. In the previous DUI example, reasonable suspicion could be physical symptoms of intoxication, like bloodshot eyes or an odor of alcohol. That’s not much proof, but it constitutes reasonable suspicion in most cases.
Partial plain view claims are in a grey area. If officers see the butt of a rifle protruding from under a seat, the item could be a BB gun, a toy gun, or a sawed-off shotgun.
Reasonable suspicion also triggers the stop-and-frisk exception. If officers believe that the defendant is carrying a weapon and poses a threat, officers may stop and frisk the defendant. The officers may also seize any other contraband they see in plain view, or rather feel in plain touch.
Guns and knives are pretty straightforward. But if the officer feels a baggie, that baggie could contain anything.
These stops are even more controversial in light of 2013’s Floyd v. City of New York. A federal judge ruled that New York City’s liberal stop-and-frisk policy was a tool for racial profiling and should therefore be more narrowly tailored.
This exception applies to any motor vehicle, not just automobiles. If officers have reasonable cause to believe that there is evidence of a crime in a motor vehicle, they do not need a warrant to search it.
Any search must be narrowly tailored. Assume officers receive a tip that that Allison is transporting stolen oil paintings. Citing the automobile exception, they search her car, find drugs in her glove compartment, and seize them.
There are two basic problems with this search. First, an informer’s tip usually does not constitute reasonable cause, unless the informer has a good track record and/or there is some corroborating evidence. Second, there are probably no stolen oil paintings in Allison’s glove compartment, so officers had no right to search it.
Warrantless searches occasionally hold up in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. The sooner you call, the sooner we’ll begin fighting for you.