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SEARCH AND SEIZURE: Part 1

The 4th Amendment and You

Welcome to the first of five articles about the Fourth Amendment of the United States Constitution. Our goal with this article is to explain the basics and provide the building blocks you need for future articles. We hope that you enjoy this material, however daunting it may seem, and that you can add this knowledge to your personal bank of information.

The language of the Fourth Amendment protects citizens from “unreasonable searches and seizures” and demands that warrants to search must be supported by probable cause. Probable cause means there is a high probability that a crime has been, or is being, committed. It’s a very high standard and an officer must present a wealth of evidence to a magistrate to issue a warrant.

There are two types of warrants—a warrant for arrest and a search warrant. Both require probable cause, but carry different rules. An arrest warrant means the officers can only arrest the person on the warrant. They can detain anyone in the house to make sure that no one gets in the way or is at risk of hurting the officers. Officers also have a right to go through the house for their safety to make sure no one is hiding, to minimize their chances of being ambushed. However, if police only have an arrest warrant, it’s not likely they’ll find the person they’re trying to arrest in your sock drawer so they cannot go looking around where a person cannot possibly hide. If they do, and find anything illegal, it can be “excluded” at trial, as what the court calls “fruit of the poisonous tree.” If it’s a search warrant, they can search anywhere looking for evidence connected to the crime they’re investigating, and they can also seize anything illegal that they find.

There are exceptions to the warrant requirement, however. The first exception is a big one—if anything is in “plain view,” which means an officer can see it without any digging, is fair game and the officer can seize it as evidence and arrest you. This applies whenever an officer is in a location lawfully, which we’ll discuss more in upcoming articles. For now, it’s safe to say that anything out in the open where anyone can see it and immediately identify it as illegal is something that an officer can seize and arrest you for.

Usually, when acting under a warrant, an officer must knock, announce his presence, and wait a reasonable amount of time for the person to answer the door. According to North Carolina Law (§ 15A-251), an officer may, however, enter a home without the person opening the door if they have followed the steps but no one has answered the door. The officer can only do so if he/she believes that the occupant of the home is denying them entry or that they are being unreasonably delayed. The officer can also enter if he/she has probable cause that evidence may be destroyed, someone is in danger, or a suspect may flee. The officer then may enter to prevent any of that from happening. These are called “exigent circumstances.”

The exclusionary rule is the fancy word for the rule of the “fruit of the poisonous tree” discussed above. The rule is that any evidence seized in violation of a person’s constitutional rights should not be included at trial. This usually means that the case cannot go forward. Courts call this type of evidence “fruit of the poisonous tree,” the poisonous tree being the violation of the citizen’s rights. For example, if someone were on trial for a drug charge and the drugs couldn’t be presented as evidence because they were found in violation of that person’s rights, it would be very hard for that trial to proceed.

Thanks for reading. As complicated as this subject may be, we’ll make sure to walk you through it so that if you ever find yourself in a sticky situation, you’ll know your rights or at least know what to ask your lawyer about.

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