Search and Seizure

When Can the Police Search My Home?

Privacy of the Home Under the Fourth Amendment

The first ten amendments to the Constitution are collectively entitled the Bill of Rights and contain limitations on the power of government. The Fourth Amendment limits government's power to invade privacy. It reads as follows: "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."

The Amendment creates several requirements for a lawful search. First, the warrant must be based upon probable cause. Whether there was probable cause is often disputed in a criminal case. Probable cause exists, according to the Supreme Court, when the facts and circumstances would cause a person of reasonable caution to entertain a strong suspicion that a crime has been or is about to be committed. The officer must provide some reasonable basis for seeking a warrant. If the reason given by the officer is inadequate, the warrant, and the resulting search, are invalid. The officer must swear before a judge or magistrate to the facts and circumstances supporting the warrant. In addition, the officer must state where the search is to be conducted and what type of evidence the officer seeks at that location. For a house, a street address usually satisfies this requirement. If the site is in an apartment complex, however, the police must give the specific apartment number. A warrant to search one unit does not authorize police to make a wholesale search of the building. Also, police may only seize evidence of the sort provided in the warrant. A warrant does not authorize a police shopping spree in the suspect's home. Over the years since the Constitution was drafted, the courts have carved out some exceptions to the warrant requirement. One of these is the "search incident to arrest" exception. Police have the power to search the area within an arrestee's immediate reach or control. This may include the inside of a car, but is unlikely to include an entire house and garage. Officers also have the right to pursue a fleeing felon into a private home. They must actually be in "hot pursuit" at the time, but if they are, they can follow the suspect into his home, rather than being forced to let him escape. Certain emergency situations, such as being called upon to stop a violent conflict, or stop gunfire emanating from a dwelling, may also justify a warrantless entry. Courts struggle to define which type of emergency situations qualify for a warrant exception. There are also circumstances that are not protected by the Fourth Amendment. The Amendment only applies where a person has a reasonable exception of privacy. The bedroom is virtually always such a place. But the protections of the Amendment decline in more open settings. If a person was engaging in illegal activity on an open porch or patio, the expectation of privacy is diminished because the individual has exposed his actions to neighbors and passers-by. From this type of scenario comes the concept of "plain view." Police are not barred from acting pursuant to evidence of criminal activity that is plainly visible. If police came to a house because someone had reported a gunshot, and the responding officer saw drugs on a table, he would not need a warrant to seize the drugs. This is because the officer has to make no real invasion of the suspect's privacy to locate evidence of a crime. To help define where a person does or does not expect privacy near his home, the courts have developed the principle of "curtilage." The curtilage is a zone close to the home in which privacy is expected. Yet its limits are not precise. Courts look at such factors as its proximity to the home, whether it is enclosed, to what use the area is put, steps the homeowner has taken to prevent observation, and other factors linking the area to the privacy of the home. Generally, evidence secured in violation of the Fourth Amendment will be excluded from trial. Under a doctrine known as "Fruit of the Poisonous Tree," a court will exclude all evidence obtained as a result of the unlawful search. The initial illegal search is the poisonous tree and the subsequent evidence gained as a result - the fruits of that search - is also poisoned by a violation of the Fourth Amendment and is inadmissible.

Conclusion

The power of the police to seek out and seize evidence of criminal activity is limited within private homes. To enter and conduct a search, the police must have a warrant based on probable cause. This warrant must be secured from a qualified magistrate, or judge, based upon a sworn statement reciting facts from which a reasonable person would conclude criminal activity was afoot. The warrant must be specific as to where the police want to search and what the police are seeking in the search. If any of these requirements are not met, the warrant may be challenged as invalid and the evidence secured as a result may be contested as inadmissible. The Fourth Amendment is the strongest protection a person has against unlawful or excessive police searches of the home.

The Law Office of H.A. Sala is dedicated to the protection of your Fourth Amendment rights. We will vigorously litigate any unlawful search or seizure. H.A. Sala has been representing clients against illegal police search and seizure for over 30 years. If you need assistance in upholding your rights against illegal search and seizure, please contact our offices at (661) 322-1708 or e-mail us.