The Rules of Search and Seizure
As a rule, police may not search a person or property without a search warrant. In order to get a search warrant police must have probably cause. In other words, there must be specific signals that the person committed the alleged crime or that an area contains materials connected to an alleged crime. In order to have probable cause, police must have specific facts to support their belief. Police cannot obtain a search warrant based on a mere hunch that a person committed a crime or that materials connected to a crime will be found in a particular place.
Police may, however, stop and question someone based on something less than probable cause – reasonable suspicion. This standard requires fewer facts than probable cause. Even though only reasonable suspicion is required for a police officer to stop and question someone, that police officer may obtain probable cause through that questioning. This is one reason why it is so important NOT to answer questions from police without a lawyer present.
Exceptions to the General Rule
There are a few exceptions to the rule that police must obtain a search warrant before searching a person or place. These include:
- Search During an Arrest. If police arrest someone, they may search that person and their belongings. If police arrest someone in a car, they may search the passenger area, the area near the driver, and other people in the car. Police may also take the car and search it. If police arrest someone in their home or a building, they may search around the “arm span” of that person.
- Vehicle Search. If police have probable cause (specific facts) to believe that a vehicle contains specific items or evidence of a crime, they may search anywhere in the car where that those items may be found.
- Stop and Frisk. If a police officer believes someone is armed and dangerous, the officer may pat down that person's outer clothes to search for weapons based on reasonable suspicion. The officer may not use his fingers to move and manipulate things someone might have in their pocket. However, if a police officer can plainly feel weapons or other items that they know are illegal, the officer may seize those as well.
- Consent Search. Police can search an area if an adult that police believe have authority to permit the search lets them. For example, an adult friend is visiting someone's home and is alone in the house. If the police come to the door of the house and ask to search the bedroom and the friend consents, the police are lawfully permitted to look through the bedroom. However, the person who gave consent may take it away at any time or limit the consent to a particular area.
- Items in Plain View. If police are allowed to be somewhere, like out in public or while in a home with a homeowner's consent, they may seize illegal materials that they can see.
- Emergency Circumstances. If there is a risk that someone will be harmed or criminal evidence might be destroyed, police may do almost anything to protect against that, including entering a residence or other property.
It is important to note that no one is ever obligated to consent to a search. In fact, you should always ask to speak to a lawyer before answering any questions or providing any consent to search.