5 Myths about Search & Seizure

What Should you Know?

Most people have never had the experience of being subject to a police search. When the search happens, a million things run through your mind. “What if they find something I didn’t even know was in there, or worse what if they plant evidence? Can they search anywhere? Do they need a warrant?”

The law surrounding search and seizure can be complex. Thus, it is helpful to start with some basic principles which help us understand the justifications for why we have them in place. We will begin with discussions on the Rule of Law as well as Due Process. Having these in mind, I will attempt to dispel 5 Myths about Search & Seizure that many people believe.

What is the Rule of Law?

We have all seen the cop shows on TV. You know the ones that I am talking about… the one where the rogue cop goes on a no-holds barred investigation to get to the bottom of a seedy criminal empire. Contrary to what Hollywood would have you believe, the law still applies to those who wear a badge. In fact, one of the founding principles of our country is the dedication to the principle of the Rule of Law i.e. laws govern our nation as opposed to the arbitrary decisions of a government official. No one is above the law. It constrains everyone’s behavior. This includes our nation’s citizenry and especially our nation’s government officials.

due proc·ess
[d(y)o͞o prəˈses]
NOUN
fair treatment through the normal judicial system, especially as a citizen’s entitlement.

Why do we have Due Process?

Have you ever thought about why we have Due Process? It’s all about us not trusting the government. It’s an obstacle course designed to prevent abuse of power by the government. Official oppression of the people is worse than other forms of oppression and arguably the worst form of oppression. There is always a balance at play whenever we discuss these issues. On one hand, we have the interest of people being free to live their lives autonomously and free from unreasonable government intrusion. On the other hand, we have the interest of the government in solving crimes and enforcing perceived violations of the law. It is at this intersection that we begin our journey in exploring 5 myths people commonly believe about search and seizure.

Myth #1 If the Cops Break the Law then the Case gets Dropped.

I often get asked, “If they violated my rights then the case automatically gets dropped, right?”

The Truth is:

If the cops violated your rights your case may or may not get dropped. This all depends upon what evidence was gathered in violation of your rights and thus subject to the “Exclusionary Rule” and what evidence still remains. Consider this:

  • Evidence gathered in violation of your 4th Amendment rights cannot be used at trial. Weeks v. United States, 232 U.S. 383 (1914).
  • The justification the Supreme Court used for this rule is that “a conviction… the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand.” In addition, “nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence….Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Mapp v. Ohio, 367 U.S. 643 (1961)

However, in some cases, prosecutors may have access to evidence that was not gathered in violation of your rights. For example, a cop pulls you over for speeding. He smells alcohol on your breath and about your person. The cop also sees a beer can in plain view in your center console. He then asks you to step out of the vehicle. You perform the field sobriety tests which you promptly fail. After he arrests you, he administers a breathalyzer test at the police station, which you again promptly fail. He later obtains a confession from a custodial interrogation in violation of Miranda v. Arizona 384 U.S. 436 (1966) because he did not read you your Miranda rights. That confession would not be allowed to be used against you at trial. However, the prosecutor would still be allowed to use other lawfully gathered evidence against you at trial, including the officer’s testimony regarding:

  • Speeding
  • Smell of alcohol
  • the beer can in center console (also photos and/or the can itself if they are available)
  • Failure of the field sobriety tests (along with dash cam or body cam video of them being performed if they are available)
  • Failure of the breathalyzer  test (along with the breathalyzer certificate if available)

So, you see, while evidence of your confession may be helpful to the prosecution’s case, in this instance, it is likely that the confession is not necessary to obtain a conviction. However, in another case where legally gathered evidence is either nonexistent or otherwise weak, it is likely that the case will be dropped.

Myth #2 Cops Cannot Come into your House Without a Warrant.

I hear this one all of the time. It would seem that the 4th Amendment would prohibit cops from barging into your home without a warrant. While the general rule is that:

  • the 4th Amendment protects people from the government’s unreasonable searches and seizures of their “persons, houses, papers, and effects”;
  • searches must be based on “probable cause” i.e. the police officers must have some reason to believe that the search will find contraband, evidence of a crime, or similar items;
  • prior to conducting the search, the police must generally obtain a warrant from a “neutral and detached magistrate.”

The Truth is:

Cops can come into your house without a warrant under a variety of circumstances. Below are some leading cases that you can research which talk about specific instances that police can enter your home without a warrant.

  • Exigent Circumstances: The exigent circumstances rule states that police can enter a structure without a warrant if certain exigent (i.e. pressing, demanding, urgent) circumstances exist. These circumstances could include preventing physical harm to persons, the destruction of relevant evidence, the escape of the suspect, etc. In other words,  police may enter a home without a warrant if they have an objectively reasonable basis for believing any of the above circumstances exist. Brigham City v. Stuart, 547 U.S. 398 (2006). US v. McConney 728 F.2d 1195 (1984).
  • Hot Pursuit: The “hot pursuit” exception states that if the cops are pursuing a suspect and he runs into his or another’s dwelling, a warrantless entry may be permitted. United States v. Santana, 427 U.S. 38 (1976).
  • Consent: Akin to vampires, cops generally cannot come into your house without a warrant unless you invite them in. This would seem intuitive, however, there are some nuances that need to be explained. Consent must be voluntary. Consent is NOT voluntary where police say they have a warrant. Bumper v. North Carolina, 391 U.S. 543 (1968) . However, consent is valid even when the government uses undercover agents who misrepresent their identity to enter a residence. Lewis v. United States, 385 U.S. 206 (1966).
  • Protective Sweeps: Although this one does not require a search warrant, it does likely require an arrest warrant. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325 (1990). In short, police with an arrest warrant can search the rest of the house for people who may or may not be there. However, the scope of the search is limited to places where a person could reasonably be hiding. This means they cannot be looking for an elephant in a cigar box.

Myth #3 The Police Have no Right to ask me to Step out of My Vehicle

Actually…

The Truth is:

The order to get out of the car, issued after you are lawfully detained, is reasonable, and thus permissible under the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S. 106 (1977). In Mimms, a guy was stopped by police for operating with an expired license plate. One of the officers asked him to step out of the car and produce his license and registration. As he stepped out, a large bulge under his jacket was noticed by the officer, who frisked him and found a loaded revolver. He was then arrested and subsequently indicted for carrying a concealed weapon and unlicensed firearm. His motion to suppress the revolver was denied and after a trial, at which the revolver was introduced in evidence, he was convicted.

The Supreme Court justified their decision by citing that the government’s proffered justification- officer safety- is both legitimate and weighty, and the intrusion into personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer’s safety.

Myth #4 The Police Cannot Stop me for a Traffic Violation if Their Real Reason for Stopping me is __________________________.

Can they? Actually…

The Truth is:

Any traffic offense committed by a driver is a legitimate legal basis for a traffic stop. Whren v. United States, 517 U.S. 806 (1996). In Whren, police were patrolling a “high drug area” in an unmarked vehicle and observed a truck waiting at a stop sign at an intersection for an unusually long time; the truck then turned suddenly, without signaling, and sped off at an “unreasonable” speed. The officers stopped the vehicle, assertedly to warn the driver about traffic violations, and upon approaching the truck observed plastic bags of crack cocaine in the driver’s hands.

The Supreme Court stated that “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” In other words, the Supreme Court will NOT look into the hearts and minds of the cops, all they will look at is if they have probable cause. Although the Court agreed that the Constitution prohibits selective enforcement of the law based on considerations such as race the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.

Myth #5 The Police Cannot Arrest me for a Seat Belt Violation.

A seat belt violation? Really?

The Truth is:

The Supreme Court has held that the 4th Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Atwater v. Lago Vista, 532 U.S. 318 (2001). In this case, Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. The policeman observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her “mug shot” and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond.

The Supreme Court stated that there are all sorts of historical examples of warrantless arrests for violations of the law unaccompanied by violence including “nightwalker” statutes which authorized night watchmen to arrest anyone found walking at night and hold them until morning. Also, there were statutes which authorized the arrest of anyone found playing “unlawful” games, like bowling, tennis, dice, and cards. In short, “the statutes [and historical examples] riddle Atwater’s supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment’s Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence.” Atwater v. Lago Vista, 532 U.S. 318 (2001).