Search and Seizure: What You Need to Know

Search and Seizure: What You Need to Know

( – Thanks to the television police procedural genre, it would be hard to find an American who hasn’t heard that law enforcement agencies need a search warrant to enter a person’s home. But what does that mean when it comes to protecting your rights?

It’s best to start at the beginning. The Fourth Amendment of the US Constitution outlines the right protecting citizens from unreasonable search and seizure.

This means that the police cannot just act like the Gestapo of Nazi Germany and kick in your door for no reason other than a sneaking suspicion. Someone in law enforcement or the prosecutor’s office has to get a judge to sign an order that gives them permission to enter a home without the consent, sometimes without even the knowledge of the resident. That doesn’t mean you lose all your rights.

However, exceptions to the need for a search warrant do exist. Those include:

  • An officer’s reasonable belief that a crime is in process
  • The health and safety of someone inside, for instance, if they hear screaming
  • A credible and imminent threat exists towards the police or civilians in the area

It’s important to know what your rights are to know what you can and can’t do at home as well as in a car or in public.

In a Residence

If law enforcement knocks on your door and wants to come inside, ask to see a search warrant. If they have one, you cannot deny them entrance or even try to delay them to buy time for someone to flee. If you do, they can arrest you for obstruction of justice.

What to do: you can, and probably should contact a lawyer to come over.

By law, a search has to be “reasonable.” Part of that is how they search. For example, if they are looking for a television set, it would not be reasonable for them to rifle through your kitchen drawers.

What to do: Use your phone to record the search. It’s illegal for them to stop you since they’re discharging their duty. That doesn’t mean someone won’t try. At that point, it’s best to comply and deal with it afterward rather than risk a physical altercation and/or arrest.

In an Automobile

If you get pulled over for a traffic violation, you still maintain rights, but maybe not as many. If a police officer sees you speeding, running a red light, or breaking another law, they have an absolute right to stop the car. The Supreme Court has granted law enforcement wider latitude in this scenario. For their own safety, they may search the vehicle and the people inside.

What to do: Keep your hands visible to the officer as they approach. If you have a CCW permit, advise them if you have a weapon with you and follow their instructions.

On the Street

If you find yourself walking down a public sidewalk and pass by a beat cop, they are not allowed to stop you and question you for no reason. However, if you seem intoxicated or they see what might be a weapon, it falls under the definition of reasonable. They may question you and do a pat-down search. They may also take any weapons and drugs they find.

What to do: Stay calm and don’t make any sudden or aggressive moves. These kinds of actions can lead to injury or death.

In 2013, a federal judge stopped the New York City Police Department’s stop-and-frisk policy because it seemed to disproportionately target younger men of color. The exact definition of “reasonable” is still in flux.

When dealing with possible violations of your Constitutional rights, it’s a process for the courts, not the street. Yes, it can be frustrating and embarrassing. Yes, it can lead to unfair treatment, even arrest. But it must be kept in mind that an angry or violent reaction can escalate things far beyond what anybody wants. A large wrongful death settlement is cold comfort for loved ones left behind.

~Fake News Stops Here!

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