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The rules of search and seizure

In December 2012, Oklahoma City police pulled over James Hutchinson and John Matthew Lee on northbound I-35 and while searching the vehicle, found two cardboard boxes with a total of 100 bundles of compressed marijuana. Hutchinson and Lee were arrested and face charges of trafficking illegal drugs for distribution.

The Fourth Amendment to the U.S. Constitution ensures that we are not subjected to from “unreasonable searches and seizures.” This phrase generally protects people and items from warrantless police seizures and places entitled to a “reasonable expectation of privacy” – homes, businesses, hotel rooms, vehicles, clothing, purses and luggage, for example – from However, some places, like vehicles, enjoy less protection than others, like people and their homes.

When don’t police need a warrant to search?

Though the Fourth Amendment’s protections are strong, there are recognized exceptions to the warrant requirement so long as police have probable cause to justify the search. Probable cause means it is more likely than not that a crime has been committed and that the police will find evidence of the crime in the area searched.

Recognized exceptions to the warrant requirement include:

  • Consent Even if police do not have probable cause to search a person or a location, they can do so if a person who at least appears to have authority over the area voluntarily consents to a search. Police regularly use this tactic to avoid later arguments over the legality of a search. Unfortunately, many people do not realize they have the absolute right to refuse a search and that cannot be held against them.
  • A Search directly related to a lawful arrest When the police arrest a person, even for the most minor of offenses, they can lawfully search the person’s clothing or other items that will be coming with the person to the police station. The rationale is that the police need to know if a person being taken into custody has any weapons or other dangerous items, including drugs, that could pose a threat.
  • Inventory procedures. In that same vein, if law enforcement will be impounding a vehicle, they may take an inventory of any part of the vehicle and items inside to ensure that no dangerous items will be taken into the impound lot. This inventory procedure protects the police department against later claims of missing items. The only caveat to this warrant exception is that the procedure must follow the law enforcement agency’s policies on inventory and impounding.
  • Plain view Police may seize items in “plain view.” In other words, if an officer is lawfully standing in a location and sees evidence of a crime, he or she may lawfully seize the item. For example, if the police pull someone over for speeding and see drugs on the backseat through the window, they may lawfully seize the drugs.
  • Automobile exception Because vehicles are mobile, the law allows them to be searched if police have probable cause to do so. No warrant is required. In the case of drugs, the smell of drugs detected by either an officer or a drug dog is enough to provide probable cause.
  • Exigent, or emergency, circumstances Police may lawfully seize items seen while they are in “hot pursuit” of a crime. If officers are chasing a suspect and they pass through an area where they see drugs, stolen property or other evidence of a crime, they need no warrant to justify the seizure. Additionally, officers may enter a location without a warrant if they believe evidence is being destroyed. For example, the smell of burning drugs allows police to enter a home without a warrant.

If you or a loved one has been arrested and evidence was seized in the process, contact an experienced criminal defense attorney to discuss your situation and your rights. If police violated any Fourth Amendment rights by performing an unjustified search or seizure, the “exclusionary rule” prohibits the use of that evidence in the criminal case. The Fourth Amendment is constantly changing and because a violation often results in the dismissal of a case, it is critical that a skilled attorney evaluates the facts to determine if a challenge can be launched.