Search and Seizure

The Rules

Generally, law enforcement may not search a person or property without a search warrant—advance, written permission from a judge. A judge will not sign off on a search warrant without probable cause—specific signals that the person committed a crime, or that an area contains materials connected to a crime. To have probable cause, police must have facts to support their belief and not just have a hunch. But law enforcement may stop and question someone based on something less than probable cause—reasonable suspicion. This requires fewer facts than probable cause. However, based on the fewer facts needed to stop and question someone, police can, through questioning, gain enough information to give them authority to search or arrest that person.

Sheriffs

In other words, for an officer to be able to stop someone, the officer must at least have reason to think the person did something illegal. But if the officer wants to search the individual or their belongings, the officer needs facts to support his or her belief that the person committed a crime. This is the general rule.

 

The Exceptions

There are several exceptions to this general rule where police may search someone or seize—take—their property without obtaining a warrant from a judge in advance.

  • Search during arrest. If police arrest someone, they may search that person and their belongings. If police arrest someone in a car, they may also search the passenger area, the area near the driver, and the other people in the car. Police may also take the car and then search it. If police arrest someone in a home or building, they may search around the arm span of the person arrested. The police may also sweep the home or building to look for that person’s accomplices. However, this does not mean that police can rummage through dresser drawers in the upstairs bedroom, if a person was arrested in the downstairs living room.
  • Vehicle search. If police have probable cause to believe that a vehicle contains illegal items or evidence of a crime, they may search anywhere in the car that item might be found. For example, if someone reportedly stole a large TV, police could not search a suspect’s car’s glove compartment but could probably search the trunk.
  • Stop and frisk. If a police officer believes someone is armed and dangerous, the officer may pat down that person’s outer clothes to search for weapons based on reasonable suspicion. The officer may not use his fingers to move and manipulate things someone might have in their pocket. However, if a police officer can plainly feel weapons or other items that they know are illegal, the officer may seize those as well. If the person is in a car, this search may extend to the entire car.
  • Consent search. Police can search an area if an adult that police believe have authority to permit the search lets them. For example, an adult friend is visiting someone’s home and is alone in the house. If the police come to the door of the house and ask to search the bedroom and the friend consents, the police are lawfully permitted to look through the bedroom. However, the person who gave consent may take it away at any time or limit the consent to a particular area.
  • Items in plain view. If police are allowed to be somewhere, like out in public or while in a home with a homeowner’s consent, they may seize illegal materials that they can see.
  • Emergency circumstances. If there is a risk that someone will be harmed or criminal evidence might be destroyed, police may do almost anything to protect against that, including entering a residence or other property.

It is important to remember that nobody is ever obligated to consent to a search. In all cases, individuals should calmly but firmly assert their rights during police interactions.

 

Rights of Protesters