In general, police must have a warrant to search you, your home, or and your personal belongings. To obtain a search warrant, the police officer needs probable, meaning that an officer must have some evidence more than his own inclination that evidence of a crime will be found. Be aware, however, that officers do not always need a warrant. There are several exceptions to the warrant requirement of the Fourth Amendment that make warrantless searches perfectly lawful in certain situations.
The Fourth Amendment
The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures by police and other government agents. In this blog, we will be focusing primarily on police searches. In most cases, police must have a warrant to search you, your home, or your personal belongings. In order for the police to get a warrant, they must have probable cause to believe that evidence of a crime may be found. There must be proof of a “fair probability” that contraband or evidence of crime will be found in the area searched. Police officers only need a search warrant when their actions constitute a search under the meaning of the Fourth Amendment.
What is a Search?
A search under the meaning of the Fourth Amendment occurs in one of two ways. First, a search has occurred where an individual has a reasonable expectation of privacy, and a government official invades that privacy in order to obtain information. In order for an individual to have a reasonable expectation of privacy, that individual must have a subjective expectation of privacy that is objectively reasonable. Second, a search has occurred where a government official has physically intruded on private property in order to obtain information.
As mentioned earlier in the blog, police generally need a warrant to conduct a search. However, warrantless searches may be reasonable and lawful. There are exceptions to the warrant requirement of the Fourth Amendment. Police officers are able to justify warrantless searches due to: exigent circumstances; search incident to lawful arrest; consent; inventory searches; automobile exception; plain view; Terry “stop and frisk”. There are three types of exigent circumstances: evidence that would dissipate or disappear in the time it would take to get a warrant, a fleeing felon, and emergency aid for a person inside of the home. Search incident to arrest allows police to conduct a warrantless search of an arrested person and the area within the person’s immediate control. Consent allows the police to perform a serach if you give them permission. Inventory searches typically happen when arrestees are booked in jail and when vehicles are impounded by the police. A terry stop and frisk is a pat down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous.
The plain view exception to the warrant requirement is exactly as it sounds, it allows officers to seize incriminating evidence without a search warrant when the evidence is in plain view. In addition to being in plain view, the nature of the contraband must be readily apparent. To demonstrate the plain view exception, consider the following: if a gun is laying in the front passenger seat of a car, it is in plain view, but if the officer had to look under the seat to find the gun, it is not in plain view. It is important to note that police must be lawfully present at the location that they found the item in “plain view.” For example, if police illegally enter your home (they had no search warrant and no search warrant exception existed), and see illegal drugs in plain view, this would still be an unlawful search because the police were unlawfully present. But, as with most things in law, there is an exception to this rule. If the item would have inevitably been discovered, the search may be upheld as valid even if the officer had no lawful right to be present in the area where the plain view took place.
Does this apply when the police smell something suspicious?
This theory parallels the plain view exception, where smell should be enough to constitute probable cause for a warrantless search. For instance, you’re in your car when an officer knocks on your window and a waft of marijuana smoke hits the officer instantly. The officer then orders you to get out of your car and proceeds to search your car. The officer doesn’t need a warrant in this case to lawfully search your car because he recognizes the smell of marijuana. See United States v. Humphries, 372 F.3d 653 (4th Cir. 2004).
Can police search your cell phone, laptop, and fitbit without a warrant?
Police generally cannot access data on electronic devices without a warrant. However, with a warrant, police will be able to use your Fitbit data (and data from other motion tracking devices) as evidence against you in court.
The special needs exception to warrants covers the “special needs” of law enforcement, governmental employers and school officials beyond a general interest in law enforcement. Some examples include drug testing, parolees, and school searches. For drug testing, a warrantless, suspicionless drug test can occur in a variety of circumstances including the scene of an impact accident, customs agent responsible for drug interdiction, and public school children who participate in any extracurricular activities. For parolees, warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole. Warrantless searches of the person and the “effects” (purses or backpacks) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive, in light of the age and sex of the student and the nature of the infraction.
Please feel free to contact us and speak with a criminal defense attorney about any other search warrant related questions.