The Fourth Amendment states: “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.”
The basic principles of search and seizure law:
(1) a person has a right against unreasonable searches and seizures;
(2) this right extends to one’s person, house, papers and effects;
(3) the government must show probable cause to obtain a warrant; and
(4) the government must describe with particularity the place, person or things to be searched and seized.
Exceptions to an Arrest or Search Warrant by Police.
There are however several reasons why the police can avoid the need to get a warrant. Search as part of a lawful arrest, stop and frisk if the police thinks you are committing a crime, an automobile stop, consent to enter your home, and several more reasons.
Search Warrant Limitations
The police cannot however lift things up if they are allowed access into your home. They cant stop you without being able to articulate why they stopped you however.
If you were pulled over, they can search your car later, but they cannot wait too long to search your home or other places where you have an expectation of privacy.
Do you have an expectation of privacy in your car?
The general rule is that you do not. You are on a public road driving a car that needs an driver’s license which the state grants you. So, you have no expectation of privacy in your car. Oh, and yes they can check the entire car including the trunk.
There are two different types of warrants under the Fourth Amendment:
- An arrest warrant: an arrest is a seizure of the person. To obtain either warrant, a police officer must make a showing to a magistrate of “probable cause,” a phrase taken directly from the Fourth Amendment. Probable cause for an arrest warrant exists if a prudent person would have believed that the defendant had committed or was committing an offense
- A search warrant: However, the “probable cause” for an arrest warrant is different from the “probable cause” for a search warrant. Probable cause for a search warrant exists if a prudent person would have believed that the place to be searched contains the person or things to be seized, such as contraband or evidence of a crime. The Fourth Amendment requires that the search warrant describe with particularity the place to be searched and the persons or things to be seized.
To enter a building to make an arrest, a police officer sometimes needs both types of warrants: a search warrant, to enter the building in order to search for the person; and an arrest warrant, to arrest the person when found.
Call us at Gasso Law to find out if your rights were violated and the Police performed an illegal search or arrest. The consultation is FREE. 305-216-2857.