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YOURCONSTITUTIONAL RIGHTS

AGAINST

UNLAWFUL SEARCHES& SEIZURES

4

4th AMENDMENTTO U.S. CONSTITUTION

The Fourth Amendment applies only when a person has a reasonable expectation of privacy in the place searched or the item seized.seized. Whether an expectation of privacy is “reasonable” is determined by the individual’s subjective or personal expectation of privacprivacy, as well as a societal or objective expectation of privacy.

REASONABLE EXPECTATIONOF PRIVACY

The Fourth Amendment establishes the general rule that a warrant is required before law enforcement can engage in search and seizure activity. The warrant must be:

Issued by neutral third-party — a judge or magistrate;BaseBased on “probable cause” that contraband or evidence of a crime will be found or, in the case of an arrest warrant, probable cause that the person has committed a crime; and SpecifiSpecific in terms of the place to be searched and the items or persons to be seized.

Thus, the warrant requirement demands that a judge give his or her “okay” to a limited invasion of privacy.

THE WARRANT REQUIREMENT

A warrant can only be issued upon a finding of “probable cause.” Probable cause usually is established by a sworn statement (“affidavit”) or sworn oral testimony. If, based on all the circumstances set forth in the affidavit or testimony, the judge determines that there is a fair probability that the search will lead to the discovery of contraband, or evidence of a crime or the person who committed a crime, then the judge will issue ththe warrant.

PROBABLE CAUSE

There are exceptions to the general rule that police must obtain a warrant to effectuate a search and seizure. For example, the police do not need a warrant:

To stop a car for a traffic violation and detain, temporarily, the driver and passengers. To conduct a search incident to arrest.TTo seize an item that reasonably appears to be contraband or evidence of a crime and is in plain view of the officer.

Likewise, no warrant is required when:

A A person consents to a search. When you agree to a search, you are voluntarily giving up your expectation of privacy and your Fourth Amendment rights. “Exigent circumstances” exist, including, for example when officers are in hot pursuit of a felon.

EXCEPTIONS TO THEWARRANT REQUIREMENT

Evidence obtained in violation of the 4th Amendment cannot be used against you; it must be “suppressed.” Moreover, any evidence that is obtained or derived from the unlawfully obtained evidencevidence also must be suppressed. The law calls this evidence the “fruit of the poisonous tree.” For example, if the police obtain a gun as a result of an unlawful search, the gun mamay not be used as evidence in a criminal case, nor may the fingerprints or any other evidence found on the gun. For legal purposes, it is as if the gun never existed.

RIGHTS ENFORCED BY THE“EXCLUSIONARY RULE”