While we have protections against unreasonable search and seizure, those rights are far too often unknowingly waived in interactions with law enforcement. Remember to take a STAND for your rights by never consenting to a search!
Search and seizure refers to the government’s practice of examining people or property for evidence of a crime. Data shows significant and long-standing racial disparities in search and seizure practices, disproportionately impacting communities of color.
Your Fourth Amendment rights protects you from unreasonable searches and seizures by the government, usually requiring law enforcement to acquire a warrant for the search or to find a legal exception.
“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 writers of the constitution wanted to be sure that the people would be protected against the government invading their privacy, while also giving the government some ability to do its work of ensuring public safety.
Generally speaking, in order for law enforcement to search you or your things, they need a signed document (a warrant, often issued by a judge) outlining the specifics of what they will search or take. The exclusionary rule prohibits law enforcement from using evidence obtained through a violation of a person’s constitutional rights, such as unreasonable searches and seizures under the Fourth Amendment. However, there are some legal exceptions that allow law enforcement to search you or your belongings without a warrant.
To obtain a search or arrest warrant, law enforcement must provide a judge with supporting information (ex: documents, testimony) that establishes probable cause to believe that an offense has been committed and that the defendant committed it. The warrant must specifically outline the person or place to be searched, the alleged offense, and the time frame in which the search can be conducted. It is important to ask for and fully read a warrant if law enforcement uses that to justify a search
If law enforcement officers knock at your door, instead of opening the door, ask through the door if they have a warrant. You can ask the officers to slip it under the door, show it through a peephole, a window in your door, or a door that is only open enough to see the warrant. If you feel like you must open the door, step outside and close the door behind you and ask to see the warrant.
NOTE: A search warrant or arrest means you have to answer law enforcement questions. You can and should invoke your right to remain silent.
A search warrant is should include specific details including:
Make sure the warrant contains these details above, and tell the officers if they are at the wrong address or if you see some other mistake in the warrant. If you tell the officers that the warrant is not complete or accurate, you should say that you do not consent to a search.
Warrants are typically needed to search and seize a person or evidence of a crime, since warrantless searches can lead to the exclusion of evidence found, so law enforcement must obtain a warrant, whenever possible, absent a valid exception.
However, the Supreme Court has identified six exceptions where a warrantless search is reasonable and will not result in the exclusion of evidence obtained in the search as long as they can prove they had one of these legal expectations:
Exigent circumstances – allows law enforcement to enter a structure without a search warrant. Only applies in a situation where people are in imminent danger, evidence faced imminent destruction, or a suspect’s escape is imminent.
Plain view – allows law enforcement officer to seize evidence and contraband that are found in plain view during a lawful observation to further investigate criminal behavior
Search incident to arrest – permits searches of the person of an arrestee as an incident to the arrest. Can also allow law enforcement to search within the reach of a driver in a vehicle.
Consent – law enforcement can conduct a search if they receive voluntary permission from an individual with authority over the property to be searched.
Automobile exceptions – allows the search of a vehicle if they have probable cause to believe it contains evidence of a crime or contraband. Once probable cause exists, officers can search the entire vehicle and any containers within it where evidence may be found.
Special needs – allows certain searches for a special need beyond ordinary criminal law enforcement. These searches must serve a compelling government interest, minimally intrude on privacy, and be reasonable in their approach. EX: airport security, drug testing of public employees, and school searches
There are a lot of different legal reasons why police might be able to search you or your things, including receiving verbal consent or permission.
Sometimes, officers will make statements that sound like demands, even when they do not have legal grounds to search you or your things. This can lead to the common mistake of people unknowingly giving consent to a search.
Because you may not know the specific justification that law enforcement may try to use, it is important to do your part to clearly share that you are not giving consent for a search to happen. Remember the N in our STAND acronym:
“No, you don’t have permission to search my things.”
“I do not consent to a search”
“No, I don’t give consent for you to search my body”
By verbally refusing a search, you make it clear that if the police decide to search you anyway, they will have to prove they did so based on a legal rationale OTHER than consent.
Refusing to consent may not stop the officer from carrying out the search against your will.
For your own safety, do not resist if you are searched.
We hope the information provided gives a deeper understanding of your rights around search and seizure.
The Fourth Amendment was created to protect people from unreasonable search and seizures.
Knowing your rights is only a layer of protection and does not guarantee your safety. It is important that you do what it takes to get home safely. This might mean complying with orders that feel like violations of your rights.
There are opportunities during the court process for your attorney to fight for you. You may also consider filing a complaint with a nonprofit or government agency about your experience. At the end of the day, we want you to make the decision that is safest for you.
