When it comes to warrantless searches, it’s your rights and their duty

29th February 2016   ·   0 Comments

By David Abdullah
Contributing Columnist

The U.S. Constitution and its amendments protect our individual rights and liberties. The Fourth Amendment in particular provides the right to be safeguarded against “unreasonable searches and seizures” and says that all warrants shall only be issued “upon probable cause.” The amendment applies not only to people, but also to their houses, property and effects—such as cars or garages. However, sometimes the lines are blurred on our rights, and law enforcement officers may conduct searches without warrants. Whether a warrantless search is proper usually comes down to what has sometimes been referred to as the reasonableness requirement.

When can law enforcement conduct warrantless searches? Some circumstances under which a warrantless search is deemed reasonable are the following (Note: this is not necessarily an exhaustive list.):

Search Incident to a Lawful Arrest

Generally, an officer who has probable cause and has made a lawful arrest based on probable cause, may conduct a search of the subject’s person, clothing, and all of the areas in the subject’s immediate reach.

Vehicle Searches (the Automobile Exception)

Vehicles may be stopped if an officer has reasonable and articulable suspicion that the vehicle operator has violated a traffic law. Once the vehicle has been pulled over, and if the officer has probable cause to believe that illegal contraband, or the fruits, instrumentalities or evidence of a crime may be in the vehicle, the officer may search the vehicle and any container that might reasonably contain the item for which they had probable cause to search. For example, if you are pulled over in your car and the officer smells drugs or alcohol, they can take a look through the vehicle to search for drugs in easy places like the dashboard or a console. However, they cannot conduct a full, comprehensive search without a warrant.

‘Exigent’ Circumstances

The U.S. Supreme Court has upheld searches and seizures that may be justified by “exigent” (or pressing) circumstances. In determining whether pressing circumstances justified law enforcement action, the courts look at the totality of the circumstances, including the gravity of the underlying offense and whether the subject was fleeing and/or attempting to escape. Such circumstances as shots being fired or screams coming from a house have been considered “exigent” circumstances, thus allowing a warrantless search.

Consent

If consent is given by a person reasonably believed by an officer to have authority to give such consent, a warrant is not required for search and seizure. A law enforcement officer may ask if they can search your body, car or home—and they do not have to tell you that you have the right to decline. If you agree to the search, you have consented. Once you consent, anything law enforcement may find is admissible in court and can be used against you.

Plain View

There is no warrant requirement to seize evidence in plain view, if the law enforcement officer is legitimately in the location from which the evidence can be viewed. The same applies to your home. If the police are dispatched to your house for a noise violation or other complaint, and they have serious reason to believe that illegal activity is occurring or see criminal evidence in plain view, they can search your home.

Law enforcement needs necessary circumstances to conduct warrantless searches, but it does occur. If you believe that your rights have been violated and you’ve been the victim of an unlawful search or seizure, contact a local attorney and file a complaint with the offending law enforcement department. Cases may be taken to court, where a judge will decide if the officer had probable cause to conduct the search without a warrant.

David M. Abdullah is a shareholder with New Orleans-based law firm, Peiffer, Rosca, Wolf, Abdullah, Carr & Kane APLC.

*This article should not be considered legal counsel or legal advice.

This article originally published in the February 29, 2016 print edition of The Louisiana Weekly newspaper.