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Understanding the Fourth Amendment: Illegal Search and Seizure

The Fourth Amendment places limits on the government’s authority to arrest, search, and take property from individuals. It states:

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.

So what does all that mean?

Simple. The government is limited in its authority to arrest, search and take property from individuals.

There are several things you should be aware of regarding how the Fourth Amendment is applied:

  • Police must have a justifiable reason for entering your home to search and seize property; that justification must be substantiated with a warrant. If an officer does not have a warrant, you do not have to consent to a search of your home.
  • Police do not have to inform you of your Fourth Amendment right to not consent to a warrantless search.
  • You cannot get in trouble for refusing to be searched without a warrant.
  • A co-habitant of a residence may provide police with permission to search the premises, even if the other co-habitant is not there or does not provide his or her consent.
  • Police officers must have reasonable suspicion in order to detain you.
  • Frisks are not illegal if a police officer has reason to believe that you may harm him/her or the public.
  • After a frisk, an officer may ask you to reveal any hard objects that were discovered in the frisk; this is not a violation of your Fourth Amendment rights
  • After a frisk, an officer may ask you to reveal other evidence discovered in the frisk, but you do not have to consent to revealing soft objects. Remember, the officer must have a warrant to search for anything beyond weapons in a frisk.
  • Individuals may not be detained by police for more than 48 hours without probable cause.
  • There is no protection for what you reveal in public; property protected under the Fourth Amendment includes only things that you actively seek to keep private.
  • There is less of an expectation of privacy in your vehicle than in your home. That means, if police have probable cause to believe that your vehicle contains illegal substances, they may search your vehicle without a warrant.
  • Evidence gained through an illegal search and seizure is not admissible in court.

Determining whether a search is illegal under the Fourth Amendment can be complicated depending on the circumstances. If you believe that you may have been subjected to an illegal search and seizure, it is important to contact an experienced criminal defense attorney as soon as possible. A qualified attorney should be able to help you get illegally seized evidence thrown out in court so that it cannot be used against you.

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