To protect your interests and freedom you must understand your constitutional rights. One of these rights is a safeguard against unreasonable searches and seizures under the 4^th Amendment to the U.S. Constitution. The police cannot invade your privacy except under very specific circumstances, such as by giving express permission, probable cause that you have committed a crime, or a warrant to search your person or property. Law enforcement is then permitted to seize any evidence of a crime, such as illegal drugs and weapons. Moreover, the police can use these items to charge you with a crime, such as drug possession, trafficking and/or illegal drug manufacture. Furthermore, the prosecutor can use this evidence against you at trial. However, if the search was done illegally, these items cannot be used as evidence against you.

Before you can understand the 4^th Amendment protections, you must first understand when they do not apply. The 4^th Amendment does not apply unless you have a reasonable expectation of privacy. For example, you have a reasonable expectation of privacy in your home. Thus, law enforcement cannot seize contraband unless they are lawfully on the premises (i.e., given consent or warrant) and the incriminating nature of the item is “immediately apparent.” However, if the police see marijuana or a weapon in your vehicle, the officer does not require any further justification to seize the item. The officer will have probable cause to search your vehicle.

In addition, the 4^th Amendment does not apply unless the government is conducting the search. If law enforcement or other government entity is conduct the search, your 4^th Amendment rights are implicated. However, if a private person conducts the same search, the 4^th Amendment does not apply and there cannot be a violation of your rights (unless the citizen is conducting the search at the behest of law enforcement).

The 4th Amendment, however, provides very real protections. If the police commit an illegal search and seizure, whatever evidence was found during the search will not be permitted to be used in court. Furthermore, any evidence obtained through the illegally obtained evidence will be thrown out of court. This is known as the “fruit of the poisonous tree doctrine.” For example, if a police officer conducts an illegal search a home, finds an address book, and uses that address book to locate a witness, the witness will not be permitted to testify. The witness’ testimony will be deemed “fruit” of the unconstitutional search. While this may not lead to a dismissal of the charges, it can significantly impact the prosecutor’s ability to pursue the case.

While a warrant is often required before the police can search your property, there are exceptions. These include search incident to lawful arrest, exigent circumstances, stop and frisk, automobiles, plain-view, consent and administrative searches. Search incident to lawful arrest means that a warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. For example, if a person is stopped for a traffic offense and issued a ticket but not arrested, the officer cannot conduct a search incident to arrest. However, if that same person had marijuana in their backseat, the officer would be able to arrest the individual and conduct a search incident to lawful arrest.

A warrantless entry into a home is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. A classic example of exigent circumstances is when the police are in “hot pursuit.” Under hot pursuit, if the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, the police have the right to enter a private residence during the pursuit, search the residence, and seize any evidence found. For example, if the police witness a person commit a robbery, the police may pursue that person into a home, search the home, and seize any evidence found without a warrant. However, if the offense committed was not jailable (e.g., police witness a traffic violation), the hot pursuit exception does not apply.

Under stop and frisk, a stop by police is justified on the reasonable suspicion, based upon articulable facts, that the detainee is or was involved in criminal activity. Thus, an officer who does not have probable cause to arrest a person may make a limited search of that person if he has reasonable suspicion that the suspect was or is involved in criminal activity. In addition, the frisk must be necessary for the safety of the officer or public. For example, if the police witness a person standing on a street corner in a high-crime area and the person flees when noticing the police, the police may conduct a stop and frisk of that person. This is so even though either factor alone would not constitute reasonable suspicion to justify a stop.

For automobiles, the 4^th Amendment does not require the police to obtain a search warrant to search a vehicle is they have probable cause to believe that it contains contraband or evidence of criminal activity. For example, if the police smell marijuana emanating from the vehicle, or discover a warrant for the person’s arrest relating of a robbery charge, the police may search the vehicle for evidence of the marijuana smell or robbery.

The “plain-view” doctrine states that items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public. However, in situations where there is a reasonable expectation of privacy (e.g., inside a person’s house), an officer may seize an item in plain-view only if the officer is on the premises for a lawful purpose and the incriminating nature of the item is immediately apparent. If the officer is not legally on the premises, the plain-view exception does not apply. For example, law enforcement is executing a valid warrant to search a person’s home for a gun. Upon entering the premises, an officer saw marijuana on a table. The officer would be able seize the marijuana under plain-view. However, if the marijuana was inside a small bottle, plain-view would not apply because the drug was not plainly visible, was not mentioned in the warrant, and the item mentioned in the warrant (i.e., the gun) could not have been inside the bottle.

Consent serves to eliminate the need for police to have probable cause as well as to obtain a warrant. However, the consent must be given “voluntarily.” However, even though consent must be given voluntarily, the police are not required to inform the person from whom consent is sought that he has a right to withhold consent. However, no one should EVER given consent to the police. Make the police actually justify their search. Consent is essentially handing any and all evidence to the police without requiring them to justify their search.

Finally, the probable cause for administrative searches is less stringent than for criminal investigations. The government may validly search the following without a warrant: (1) people boarding an airplane; (2) businesses in highly regulated industries such as liquor stores and gun shops; (3) wiretaps when national security is at issue; (4) searches of students by public school officials, so long as reasonable grounds exist; and (5) inventory searches of impounded vehicles.

Columbus and Delaware, Ohio Criminal Defense Attorney

If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC at (614) 987-0192. Attorney David Johnson will discuss the case with you, investigate and scrutinize the prosecutor’s evidence, and aggressively defend you against the charges.