Search and Seizure: What Are Your Rights?


When a police officer serves a search warrant or stops someone in the street and frisks him, certain fundamental constitutional rights are involved. In fact, the Fourth Amendment to the Constitution protects all persons from unreasonable searches and seizures of their persons, homes, papers and effects. The Fourth Amendment also provides that searches must be accompanied by a warrant to be valid. Of course, since the Bill of Rights was ratified, several exceptions to the warrant requirement have arisen as courts have interpreted the Fourth Amendment and balanced it with the state’s interests in protecting the public.

For criminal defendants, rules on search and seizure are important because evidence that is illegally seized or that is the result of an illegal arrest may be suppressed at trial. If this is the only evidence of a crime, then the state may not be able to pursue prosecution. Therefore, illegal searches and seizures can have great effects on criminal prosecutions.

How are searches and seizures defined?

A search as defined under the Fourth Amendment could include a search of a home, a car or a person including frisks for contraband. A seizure under the Fourth Amendment could include an investigatory stop of a person on the street, or taking items of contraband, such as drugs, from a home, or impounding a vehicle after a person was arrested while driving it. These are common examples, but they are not the only searches and seizures that take place. When can a police officer search a person, home or vehicle?

Typically, a police officer can only search a person, home or vehicle when the officer has a warrant issued by a judge or magistrate. But as noted, certain exceptions have developed in the law when a warrant is unnecessary to search a person, home or vehicle.

For example, an officer may observe a person peering through storefront windows afterhours in an area where several nighttime store burglaries have taken place. If the officer can articulate a reasonable suspicion that the person is involved in the recent robberies, the officer can stop the person briefly to question him to determine whether he was involved in the robberies. If the officer has reason to believe the person is armed, the officer can frisk the person for weapons. If the officer feels what appears to be a weapon under clothing, the officer may remove and examine the item, and seize it if it is contraband.

Similarly, if an officer stops a vehicle driven by a person she suspects of a crime, such as armed robbery, the officer can search the suspect for weapons, and can also search the passenger compartment of the car in case the suspect has stashed weapons in the car.

To search a home without a warrant, police officers may rely on other exceptions to the warrant clause. For example, if a police officer reasonably believes that a crime is being committed inside the home, because of screams audible from outside, the police officer may enter and search the home because of the exigent circumstances involved. In another example, if a police officer asks a co-tenant of the home for permission to search, the co-tenant can consent to the search.

When can an officer stop a person or seize an item?

As with searches, seizures must also be made using a valid warrant. Exceptions include investigatory stops, sometimes know as Terry stops, in which police officers briefly detain someone suspected of illegal activity to determine whether their suspicions are true. Police may also seize contraband that is in plain view, such as a marijuana joint sitting on the dash of a car. If a police officer arrests a suspect driving a vehicle, he may impound the vehicle, in which case it will be searched to inventory the belongings. If contraband is found during the inventory search, it may also be seized.