Legal searches of your home, understanding your rights.

“I’d like to get some sleep before I travel,

But if you got a warrant, I guess you’re gonna come in.”

The Dead, at first glance, seem to have summed up the 4^th Amendment (the 4^th) in that gem from Trukin’ but there are nuances to the application of the 4^th that are worthy of further discussion.  For the purposes of this conversation, I will be dealing with the application of the 4^th Amendment  to a search of a person’s home. Searches of a person and arrest warrants will be covered in the future.

In the American Colonies, a man’s home was not his castle when it came to the Crown’s right to search your home and seize your property.  The Colonists grew weary of the Government’s ability to enter their homes and search their possessions with little or no reason other than the whim of the authorities.  Prior to the Revolution Massachusetts and Virginia limited the right of Governmental searches and seizures by requiring that the same be “reasonable.”  These documents were the basis of the 4^th Amendment to our Constitution which reads as follows:

            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.

PROBABLE CAUSE

                For the purposes of this discussion, the 4^th amendment says that the police cannot come into your home to search for contraband (stolen items or items that it is illegal to possess) without a warrant.  A warrant is a court order allowing the police to search a specific location for specific items.  The warrant is issued only after a Judge or a Magistrate reviews a document called “An affidavit in support of a Search Warrant.”  The affidavit sets out the facts and circumstances that establish (or sometimes not) the Probable Cause requirement of the 4^th.  There are several sources of information that the police can use to establish Probable Cause:

·         Citizen Informants:  Courts generally consider tips from named citizens to be reliable given that they are willing to be identified and presumably have no reason to lie. 

·         Confidential Informants:  Confidential informants tend to be people working for the police who have less than stellar integrity so their information is generally considered less reliable than that of a citizen informant but their observations can be bolstered by either a history of providing reliable information or corroboration by police officers.  For example, a Confidential Informant is searched by the police prior to going to buy drugs and when he comes out he has drugs.  When he says he saw more drugs inside, probable cause exists.

·         Police observations:  If the police, acting on a tip of suspected drug activity, conduct surveillance on a home and observe multiple people drive up, stop their cars and run to the door,  enter and remain inside for a brief period of time and drive away, probable cause may exist that drug dealing is happening in that home.

An affidavit is considered to contain probable cause if it sets forth sufficient facts to cause a person of reasonable caution to believe that contraband or other evidence of illegal activity is located at the place to be searched.

EXCEPTIONS TO THE WARRANT REQUIREMENT

Now that we have established that the police can’t enter your home to search for contraband it is important to understand that there are exceptions to this rule.  There are several clearly defined situations where the police can walk right in without a warrant.

·         Consent:  The protections contained in the 4th Amendment are a gift given to you by our Founding Fathers.  Like any gift you can give it away if you so choose. If a police officer is at your door and asks: “Do you mind if I come in and look around?” you have every right to say “Sure, Officer, come on in.  Can I get you a soda?”  When the officer finds a kilogram of cocaine under your couch the 4^th Amendment doesn’t provide any relief. 

The police can be very intimidating, especially if they want to be.  You may say to the officers at your door “no, you can’t come in” but they keep asking anyway.  It may be easier just to point at their feet to get your point across.  I found this doormat online at Target.  Protect your rights for under $20.00!!

·         Exigent Circumstances:  There are times when the police (or other governmental entities) can enter without a warrant.  These circumstances include emergency situations that pose a threat to the life or safety of the person searched or to others. If the police hear a struggle inside a home and hear somebody screaming “don’t shoot me” and hear a gunshot, they are coming in.

·         Plain View:  If the police are someplace they otherwise have a right to be and observe contraband in plain view they can seize it.  Say for example you come home from work and your front door has been kicked in.  If you call the police to report a crime and they enter your home to ensure that no burglars remain, you can’t seek shelter behind the 4^th Amendment when they find the pound of Marijuana sitting on your kitchen table that the thief couldn’t grab because his hands were full with your TV.

THE EXCLUSIONARY RULE

                Prior to the early 1900’s the 4^th Amendment was actually little more than words on a very important piece of paper.  It was only in 1915 that the United States Supreme Court came to the realization that a ban prohibiting federal agents from kicking down your door and searching your home without a warrant needed an enforcement mechanism.  Thus began the “Exclusionary Rule” that allowed a person who was the victim of a violation of their 4^th Amendment rights to ask a court to exclude evidence so obtained from the government’s case against them.  It wasn’t until the 1960’s that the Court extended the exclusionary rule to the States.
                In application, the exclusionary rule allows a person charged with a crime to file a motion asking the Judge to suppress evidence obtained in contravention to the 4^th Amendment.  If a judge, after a hearing, rules that the officer violated the amendment the evidence seized may be suppressed and rendered unusable by the prosecution.

WHEN DOES THE 4^TH AMENDMENT APPLY?

                In order to claim the protection of the 4^th a few preliminary matters must be resolved in your favor.  First, did the person claiming to be the victim of a violation of their 4^th Amendment rights have a “Reasonable expectation of Privacy” in the place that was searched?  Since we are discussing a person’s home, it would be safe to assume that they had a reasonable expectation of privacy.  Not so fast.  You may have a very reasonable expectation of privacy inside your home, but you have no expectation of privacy in items you leave outside of your house.  For example, you have no expectation of privacy in the trash that you’ve set out on the curb for pickup.  You also have no expectation of privacy for the Marijuana plant you are growing in your garden that is visible to anybody walking by.

                The second preliminary matter involves the issue of Governmental Action.  The 4^th Amendment exists to protect us from governmental activity, not from activity conducted by other citizens.  For example, a police officer walking into your garage to search for a stolen drill, without a warrant, is prohibited governmental action.  Your neighbor, walking into your garage to borrow your drill, may be bad manners but the 4^th Amendment doesn’t protect you.

                This is a very simplistic discussion of a very complicated and extremely important legal issue.  It is not intended to serve as legal advice.  If you feel that your 4^th Amendment rights have been violated, contact an experienced criminal defense attorney to discuss your situation.

Christopher L. Griffin


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