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Law Basics – Search and Seizure


*It’s a tossback Tuesday post.  There are some things every American should know.  Your rights when it comes to search and seizure definitely make the list, especially considering cases that have been making lawyers flinch all over the country, like the FBI Apple debacle.  Knowing your rights may not protect you from the the government violating them, but it could, and at the very least, you’ll know when to take it to court.*

(As always, this isn’t to be taken as any kind of legal advice, just some very simplified basics for the lay person, and a little bit of ranting lawyer.)

We’ve all seen Law and Order, right?  Well, they don’t always get stuff right but they are usually pretty on about cops having to dance around the system to get to look through your shit.  And it’s this big pain and always seems like the 4th amendment and the getting a warrant thing is there to get in the cops’ way, right?

If there is one of my legal posts I want you to remember, it’s this one.  Because the 4th amendment isn’t there to get in the cops’ way or to be a stupid bureaucratic hoop to jump through.

The 4th amendment and the warrant are there to protect your rights.

We’ll start from the top, the 4th Amendment:

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.

I can not even begin to describe the massive amounts of legal scholarship there is on this issue, the many thousands of cases picking at every little point possible to argue, and the millions of hours lawyers and law students have debated issues around this amendment.  So this will be a bare bones outline of the topic, and there will be many more to come that delve deeper.

When analyzing the 4th amendment, we have 4 basic steps we go through (4 for 4, the OCD in me loves that symmetry).

1. To invoke the 4th amendment, what do you need first?  (Think back to my first legal post on basics I’m shocked people don’t know.)

That’s right, government conduct.  The Constitution only protects you from the government violating your rights.  Your boyfriend breaking in and reading your diary is not a Constitutional issue.

And here’s the first point we debate in every criminal procedure class, what counts as government conduct?  Then we get into issue of somebody stealing stuff from someone’s house and giving it to the cops.  Does that count as government involvement?  Well, (every lawyer’s favorite answer) it depends.  Basically it comes down to specific case law in your jurisdiction and whether the judge believes in the end that the person acted alone or under a request from the police.

2. Is there a reasonable expectation of privacy on your part?  If the following suggests yes, move to step 3.

This first asks, was it your place that was violated?  Your house, car, apartment, private jet, body.  Was it yours?  If not, if it was something like a friend’s place, were you crashing there?  This gets messy but in TN at least, if you were an overnight guest at somebody’s place, you have some reasonable expectation of privacy.  As in, the cops come knocking on the door and ask to search, you can say no.

And the next question is, did you hold whatever it was out to the public?  Was it in the garbage, an open field out back, or sitting on the porch?  Or was it something like a smell or the color of the car?  If it’s held out to the public, as in anyone not a cop could see without trespassing (basically, but again, this gets a hell of a lot more complicated), then the cops didn’t violate the 4th amendment by observing it.

3. Did the police have a valid search warrant?

They can search through your stuff with a search warrant.  That’s what the warrant is there for.  But, to be valid, it must i) be based upon probable cause (reasonable grounds to believe a legitimate item for seizure is located in a particular place) and ii) describe with particularity the person and places to be searched.  Again, it’s a lot more involved (especially in debating what counts for probably cause) but this is the basic idea.  So if they didn’t have a valid warrant, you go onto step 4.

4. And this is the big kahuna step, it’s the one you see pop up in court and on TV most often.  There wasn’t a warrant, there was a violation of a reasonable expectation of privacy by the government, and the government is trying to keep the evidence in by arguing an exception.

And exception to the search and seizure requires a warrant rule?  Yep.  And you know why?  Because the 4th amendment does not actually require a warrant!  Nope, go and read it again.  It has two parts.  Search and seizure can’t be unreasonable.  There’s a Supreme Court case that says it’s unreasonable without a warrant unless there’s one of the exceptions.

As for what the exceptions are?  Those are different posts because it’s waaaaaay too involved and this one’s already pretty long.  Let’s just say, there’s a lot of them and a lot of ways to argue you are or are not in one.  This is where Prosecutors and Criminal Defense Attorneys earn their paychecks.

The 4th amendment, it’s the big one.

And why is that?  Why is it such a big deal?  Because if the court finds that the evidence was found in violation of the 4th amendment, the evidence gets tossed out.  Again, there’s exceptions, like if they can show they would’ve inevitably discovered the same evidence, but usually, violating rights loses cops the evidence.  It’s called the exclusionary rule.

And I HATE this rule!

There’s a long rant that goes with it, but the short version is: Since the rule only takes out the evidence in a trial, it punishes the system (and not the cops who did the violating in the first place) by letting the criminal go free, but provides NO remedy whenever it’s an innocent citizen whose rights were violated because that citizen is not on trial.  There was no evidence to find and to therefore keep out of a trial.

The idea is that cops will be afraid if they find something that it will then be tossed out, and therefore they don’t violate anybody’s rights.  We wouldn’t have so many freaking cases on this if it were true, but hey.

Moral of the story?  The law isn’t perfect, neither are cops, and if you want your rights protected you’ve got to know what they are.  You have the right to tell a cop asking you if he can search you or your place no.  If he then searches anyway, well, you might have something to hide that you can later try to get tossed out or you might have a cause to sue.  But that’s another post too.

(If you like a little law in your fiction, check out my latest novel, The Gods Defense.)

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