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HomeBlogSearch and Seizure: Part 2

The 4th Amendment and You

Welcome to the second article in a five-part series about the Fourth Amendment of the United States Constitution and the protections therein, specifically in terms of the term “search.” What is protected by the amendment boils down to how much privacy you expect in a particular location. For example, one would expect the utmost privacy in his or her own home, but not so much at a coffee shop. This series of articles from this point on will outline those locations, and under what circumstances law enforcement may “search” any of these locations.

The rule of “expectation of privacy” is whether a reasonable person would expect their actions or words to be private and not overheard or intruded upon by law enforcement. There are many existing cases about this topic. Lawrence v. Texas, 539 U.S. 558 (2003) doesn’t necessarily use the rule of “expectation of privacy” under the Fourth Amendment, but it does determine that acts conducted in the privacy of one’s own home should not be criminalized.

The Supreme Court of the United States addressed the issue of expectation of privacy in Katz v. United States 389 U.S. 347 (1967). As previously mentioned, expectation of privacy is utmost in your own home and decreases as you are more in public; however, the Court found that a phone booth, while in public, is protected under the Fourth Amendment. In the case, Katz was being investigated for an illegal gambling ring by the FBI when he entered into a phone booth to make a call. The FBI bugged the booth and eavesdropped on his conversation, and Katz was subsequently arrested. The Court held that by entering the phone booth and closing the door, Katz had an expectation of privacy within the booth that no one would listen to his conversation. The FBI therefore violated this expectation of privacy.

In this article, we’ll discuss the circumstances in which an officer can search your home. As with anything discussed pertaining to the Fourth Amendment, you can always give consent for an officer to search. However, if you give consent, but someone you live with is present and does NOT give consent, your consent is overruled and the officers must cease their search. As discussed in the previous article, if law enforcement has a warrant, it depends on what kind of warrant they have. To remind you, an arrest warrant gives officers the right to go through the house to make sure no one is hiding in ambush, and detain anyone in the house temporarily. A search warrant allows them to search the home for what’s outlined in the warrant. Warrants have to be specific and name the person or thing they’re looking for, and can only deviate from the warrant under the warrant exceptions discussed last week—if contraband is in plain view, if contraband not named in the warrant is found pursuant to a lawful search, or if a crime is occurring in the officer’s presence.

For example, let’s say that a bullet got fired into a nearby home and an officer is called to your home to look for weapons that may have fired the shot. The officer has a warrant to search your home. Keep in mind that warrants must be specific as to what the officer is looking for, which in this case are illegal weapons. The officer looks around and finds no weapons, but sees that your stereo system seems a little out-of-place. He moves the stereo so he can see the serial number and calls it in. It turns out that stereo was stolen and you’re arrested for its theft. Should the evidence of the stereo be suppressed (i.e. not included at trial)? Well, the court in Arizona v. Hicks 480 U.S. 321 (1987) found that it should be excluded. While the officer’s entry into your home is lawful, moving the stereo constituted a search outside the scope of the warrant and is therefore an illegal search. Therefore, the evidence of the stereo is excluded from your trial as “fruit of the poisonous tree.”

Thanks for reading. Stay tuned for further detail and more examples in the next article.

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