Kate McLean

Fourth Amendment Protections

The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be reasonable. Under the most restrictive interpretation, the Amendment requires that government officers need a warrant any time they do a search or a seizure. In practice, there are many exceptions to the “warrant rule.” The Court has interpreted the Fourth Amendment in many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive interpretation of the Fourth requiring a warrant for every search and seizure conducted. While officers are generally empowered to use their discretion in executing a warrantless search, there are several broad scenarios in which the courts have recognized that the “warrant rule” does not apply, as securing a warrant might compromise the officer’s safety, the public safety, or the integrity of criminal evidence. In order to execute any warrantless search, of course, police must first be able to articulate probable cause.

While the specific search parameters vary by state, police officers are permitted to search an individual who is being arrested. This is known as a “search incident to a lawful arrest” (SILA). SILA searches are typically limited to the immediate area around the individual – essentially their person (body, clothing) and anything within reaching distance of their person (in some cases, some compartments of their car or a bag/container in their vicinity). SILA searches are intended to protect police officers from an arrestee who may have a concealed weapon or who could potentially destroy evidence.

Suspected offenders who are detained in their cars, or who are believed to be concealing evidence within their vehicles, may also be subject to warrantless searches. This is known as the “automobile exception” (Carroll v. United States). Due to their inherent capacity for movement, vehicles represent a unique threat to any evidence contained within; in the time it takes officers to secure a warrant, the vehicle’s owner – and criminal suspect – may move the vehicle, causing a loss of evidence. For this reason, if police have probable cause to believe that a vehicle contains criminal contraband, or was used in the perpetration of a crime, they may conduct a warrantless search and seizure. The term “automobile exception” is in fact rather misleading, as this exception applies to any vehicle that can be moved, including a mobile home (provided it is still on wheels, and not connected to a power source.)

Another common exceptions to the warrant rule concerns the seizure of evidence that is in “plain view.” In other words, if a police officer can clearly see criminal contraband, or evidence that appears to be implicated in the commission of a crime, they are permitted to seize it without first going to a judge. “Plain view doctrine” does have some limitations, however. Namely, in order to legally seize evidence in plain view, an officer must be in the area where it is located lawfully, and their observation must be inadvertent. In other words, police are not allowed to bring a step latter onto your property, so that they may peer through your windows (without a warrant, that is)! Case law has effectively extended plain view doctrine to include other senses, such as plain feel, plain hearing, and plain smell – how do you think these “doctrines” may be implemented in practice?

A final exception (that we’ll review) to the warrant rule is consent. This is perhaps the most straightforward “loophole” within the Fourth Amendment, and, at the same time, the one of which we are least aware. Simply put, if an individual consents to a search – of their person, bag, car, or house – then an officer does not require a warrant, so long as probably cause can be articulated. While consent searches may largely be conducted in good faith, we should be aware of circumstances where individuals do not wholly recognize what they are consenting to. For example,  how might you react if a police officer asked, “Do you mind if I search you, you don’t have anything to hide, do you?” Moreover, the courts have ruled that consent can be implied, and a LACK of consent must be explicitly and continuously asserted.