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The 4th Amendment & Search Warrants

October 30, 2011

4. Arrest

The 4th Amendment & Search Warrants

The 4th Amendment to the US Constitution is a cornerstone of our rights.  Here’s the full text:

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.

We could discuss this Amendment for hours and still only address a fraction of its import.  Let’s pull out three clauses and limit our discussion:

  • unreasonable searches and seizures
  • no warrants shall issue, but upon probable cause
  • particularly describing the place to be searched, and the persons or things to be seized

What’s “unreasonable”?  Any search of anything when you have a reasonable expectation of privacy.  Assume you get pulled over for a traffic stop.  On the seat next to you is a bag of weed.  Hate when that happens.  The cop has the right to pull you over (assume you committed a moving violation, had a light out, etc.).  The cop has the right to approach your car.  The cop has the right to look inside your car – look from the outside, not rummage.  The bag of weed is in plain view.  You have no reasonable expectation of privacy in it being viewed.  Marijuana is an inherently criminal item (in most states and for some weights).  You’re nailed.

Now assume that it’s winter.  Your car is warmed up so your coat is on the seat to make it more comfortable to drive.  Under the coat is your bag of weed.  The cop cannot move the coat.  The cop cannot ask you to move the coat.  You’re good.  He might move it or command you to move it because “it exhibited a bulge which I interpreted as possibly a weapon.”  Smirk.  The bulky winter coat was tossed there, the weed was just a nickel bag, the driver exhibited no indicia of furtive or aggressive moves … nice try, officer.

Being argued right now, as a matter of fact, are those GPS devices that cops attach to cars to track them.  The long-standing discussion didn’t allow them – or only allowed partial data – because someone would park inside an area that held a reasonable expectation of privacy such as an enclosed garage or private roads.  But the devices have been allowed for many cases because the data tracked a person as they drove in public areas.  We’re gonna learn soon just how far the cops can go in slapping these things on cars without a properly issued Warrant.

The next issue is when a cop can get a Search Warrant.  They need probable cause.  Ballentine’s Law Dictionary: Legal Assistant Edition defines it as “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

There’s that word “reasonable” again.  The phrase “prudent and cautious person” is also instructive.  What does a “prudent and cautious person” do when they come to a railroad track?  They stop, look, and listen.  That’s also reasonable, right?  Does that same person do that a block before the railroad track?  No.  So we want to be able to explain to another person everything we know about a situation and have them come back with the conclusion that evidence of a crime is probably behind that closed door.  “Look at that idiot.  It’s a block before the tracks, he’s got houses on both sides of the street, and he’s trying to listen and see if a train is coming” is not the response you want.

Note the fuller phrase: “belief that certain facts are probably true.”  Probably.  Not certainly true.  Not absolutely true.  Not known beyond a reasonable doubt to be true.  Just probably true.

This does not give a cop a right to a fishing expedition.  Assume that a kid in a poor inner-city neighborhood walks for blocks on a regular basis in the hour or so before the dealers hit the corners.  Does that mean he’s a drug runner?  Try this – Does a person involved in no criminal activity walk for blocks about the same time on most evenings?  Ayep.  It’s called exercise.  A cop is going to need more to get a Search Warrant.  A lot more.

The “particularity” requirement is the last piece.  Again, a Search Warrant is not a fishing license.  The issue becomes what can be searched.  Assume the Warrant was issued to search a home for a murder weapon.  The cops know from ballistics that the gun was a .45 caliber.  That gun has certain minimum sizes depending on the manufacturer.  What if the cops also believe that the suspect is dealing drugs – but it’s not part of the Warrant?  If they look inside containers that are big enough to hold the gun, then any heroin they find is also good.  If they open containers too small to hold the gun, then they have exceeded the Warrant’s authority.  Any heroin found in those too-small containers is out.

Let me get one last issue off my chest.  Assume the Search Warrant was exceeded or didn’t have a proper legal basis to be issued.  Any item seized as a result of that faulty search is not admissible in court (there are, of course, some exceptions).  The trial goes forward.  The murder weapon is not allowed into evidence.  The prosecution’s case fails.  I get the victim’s family saying “He got off on a technicality.”  I get them being upset.  I’m not lacking empathy.  But there’s no such animal as a technicality.  “He got off” because the prosecution team violated the US Constitution’s requirements.  It is my job to give my client a vigorous defense.  It’s my job, as a part of that, to ensure that the Constitution is honored in the prosecution of my client.  If the cops dropped the ball, that is not my problem.

Let me hammer it home.  You want to buy heroin in Buffalo, New York?  Go to Busti Street.  It’s only a few blocks long.  Ask around.  The cops want to end dealing on Busti?  Easy.  SWAT Team block to block, every house, every person.  No Warrants – nothing.  Just a good old fashioned military invasion.  Yeah, OK, unreasonable.  Limit it to one building.  The cops know that heroin is dealt out of that building by several people.  They raid every apartment – kicking in doors, yelling guy stuff, wearing black face, and sporting fully auto weapons.  But on the 3d floor is an apartment occupied by Mrs. Jones.

Mrs. Jones worked hard all her life.  She’s in her 80s now.  A few years left at best.  Her husband passed away 20 years ago.  They moved into this apartment 50 years ago.  They never had kids.  She’s watched the neighborhood – and her building – slide from respectable to criminal.  But inside her apartment is all her memories.  The place her husband sat, where they ate dinner together, where they were when they learned his dad died.

She’s watching television and the apartment door is blown off the hinges.  Eight SWAT guys storm her apartment.  Is that right?  Of course not.  It’s not only unreasonable, it’s pathetic.

The government needs a Search Warrant.  There’s rules about how to get one.  My job is, in part, to enforce those rules.  When I do it, I’m not just protecting my client’s rights, but also those of Mrs. Jones.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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