Justice360 – Legal Bulletin: Protection from Governmental Searches

The Fourth Amendment of the U.S. Constitution protects people from “unreasonable searches and seizures.” The “unreasonable” part means that the government must have probable cause to search a person or his or her property. The first step to determining your rights under the Fourth Amendment is to know what a “search” is. The U.S. Supreme Court has said that the following are not considered searches and hence law enforcement does not need probable cause or a warrant:

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• - Law enforcement going through your trash or abandoned property

• - A subpoena to your bank for your financial records

• - A canine sniff of your belongings when you are outside the home

• - Placing a tracking device on your car, clothing, or containers

• - A search of buildings adjacent to your home but not fenced in with your home (e.g. sheds, barns, etc.)

• - Obtaining a record of the phone numbers you called ore received calls from

• - Conducting air surveillance of your back yard or property

• - Law enforcement using informant to record your conversation
  

Again, the foregoing is a list of police actions that are not considered “searches” and, therefore, these are actions for which the government does not require probable cause or your consent.

If law enforcement is taking actions that exceed those listed above, they are probably conducting a “search.” Generally speaking, a warrant is needed to conduct a search. The warrant should state: 1) the probable cause for conducting the search 2) the place to be searched 3) a description of what is to be seized and 4) the signature of a magistrate judge who signed the warrant. “Probable cause” as interpreted by courts means a reasonable suspicion that a person is involved in criminal activity.

There are several exceptions to the rule that police need to get a warrant for searches. These exceptions are very generously applied and, unfortunately, often swallow the rule. For example, police do not need to obtain a warrant for a search if 1) they are in the middle of chasing someone they suspect of a crime 2) if they think that the delay in getting a warrant will place them or others in danger 3) if they believe evidence will be destructed or 4) if a person consents to a search. As far as the fourth exception goes, you have every right to refuse to give consent to a search. (The considerations laid out in the prior Justice360 Bulletin entitled “Speaking to Law Enforcement” are applicable here to understand what might be at stake if you consent to a search).

The Fourth Amendment is a complex area of law. States have their own constitutions which may give greater protections then the Federal Constitution. Consult a local attorney to understand any additional protections you may have from state police officers.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

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