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The Fourth Amendment: How can it protect me?

The Fourth Amendment: How can it protect me?

By Megan Matteucci, Michael Bixon

The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by police. However, this protection is only as good as one’s knowledge of these rights –or having someone advocate on behalf of these rights. Under the Fourth Amendment, individuals not only have certain protected rights, but so do law enforcement. The issue is when do these rights apply. The Fourth Amendment requires police to obtain a warrant to search a home, vehicle or personal belongings, but there are some exceptions. This article will address when police need a warrant.

How can police get a warrant?

In Georgia, to obtain a warrant, police must have probable cause. This applies for both arrest and search warrants. Probable cause is a standard that judges look for to show some likelihood that a crime occurred in order to justify the search or seizure. Probable cause is determined based on whether a reasonably prudent person with the same facts would believe a crime was committed. To obtain a warrant, the officer must complete an affidavit listing the probable cause for the search, the particular place to be searched, and the person or things to be seized. The officer must agree under oath that the information he supplied is accurate before a judge will agree to issue a warrant. A warrant is required in most situations for a search, but there are several exceptions.

When can police search me on the street without a warrant?

There are two situations where police can search one’s person on the street or another public place: immediately following an arrest or for officer safety. Under the search incident to arrest doctrine, police can search any individual during or shortly following their arrest. This must be a physical arrest when the person is actually handcuffed and taken into custody. The search incident to arrest doctrine does apply to searches following a traffic citation. These searches after an arrest must be based on officers’ intentions to protect themselves or preserve evidence. That means an officer can seize items needed for evidence that could possibly be destroyed.

The second type of person search is less intrusive and is more of a pat-down, rather than a full search. The officer safety search, known as a Terry frisk, does not require probable cause. During this situation, a person does not have to be under arrest. For example, police could stop a person on the street to question them and pat them down to check for weapons. The whole point of this search is to protect officers from possible threats – like a gun or knife in the person’s pocket. During this frisk, officers can pat the person on the outside of their clothing, but cannot reach in pockets, bags or other concealed places unless they felt or see something that appears to be a weapon.

However if the person is not under arrest and not a suspect in crime, then they have no requirement to comply with the officer’s demands to stop and be questioned. The person can continue walking. Walking away from a police officer is not enough probable cause to justify an arrest.

When can police search my house or business without a warrant?

During most situations, police cannot enter a home or private building without a search warrant. However, there are a few exceptions, including when officers are in “hot pursuit” of a suspect, a risk of destruction of evidence, or potential harm to another person. Hot pursuit occurs when police are chasing a suspect and that suspect tries to dodge officers by running into their home or another private place. The chase must start in a public place. Also, just because the suspect ran inside and locked the door, does not mean the suspect has successfully escaped the law. The officers have the authority to continue chasing that suspect into the home even if it means forcing their way through that locked door.

Following an arrest inside a home, police can do a protective sweep to search the area for potential dangers. This would involve looking in the immediate area of the arrested person to ensure there is no place for someone to hide and attack the officers. But this does not give police the permission to thoroughly search the whole house. For example, police could not search inside kitchen drawers because there is no possibility of someone hiding inside the drawer. However, police could open a closet door and peer inside.

Other possible situations would be if officers heard screams or another reason to strongly believe someone inside the house was in danger. This would be cause for an officer to enter the home without a warrant. Police can also conduct warrantless searches of a home if there is a risk of important evidence being destroyed before officers could obtain a warrant. Warrantless searches of homes are often permitted in large drug cases, but the officers would need to prove that there was no time to get a warrant.

When can police search my car?

The law allows police to search vehicles a lot easier than a home. In fact, police rarely need a warrant to search a car; the only thing officers need is probable cause. This probable cause can range from officers smelling marijuana to the car matching the description of a vehicle involved in a crime.

Police are authorized to conduct warrantless searches anywhere in a vehicle that suspicious items – or contraband – can be hidden. This includes inside the trunk, under the seat or even in a glove compartment. This also could include other containers, such as a purse or backpack inside the car. The only requirement is that police have probable cause that they suspect a connection to a crime.

Police also have the authority to enter a vehicle if drugs or other contraband is in “plain view.” For example, if police can clearly see inside a car window and spot marijuana inside a cup holder, the officer has the authority to seize that marijuana. This probable cause could also be suspicion that a weapon is inside. Police can order the driver out of the vehicle to search for possible weapons. Another time when police can search a car is immediately following an arrest. During the arrest, officers can search the passenger compartment of the car. This usually includes everything except the trunk. Police can also search or “inventory” a vehicle when it is impounded or if the driver gives consent.

How can a person protect themselves under the Fourth Amendment?

While police sometimes have the authority to conduct a search, this is not a blanket right. Law enforcement power comes with limitations, regardless of what the officer tells the defendant. The Fourth Amendment is meant to protect citizens’ rights while balancing those rights with officers’ duties to protect. It is important that all individuals are aware of these Fourth Amendment rights and have a strong advocate to ensure they are not violated.

If you or someone you know has recently been arrested and you believe that your Fourth Amendment rights have been violated give Bixon Law a call at 404-551-5684. As an Atlanta based criminal defense firm, we provide aggressive legal representation and fight for our clients rights. Call today for your free consultation!

Categories: Criminal Defense