Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here « Understanding Search and Seizure Law: The Fourth Amendment
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- You should learn when the government can invade your privacy to hunt for evidence of a crime.
Limitations have been put on the power of the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons) by the Fourth Amendment to the US Constitution.
These limits are considered as the bedrock of search and seizure law. In this article I have tried to cover the basic issues that you should know about these limits, it starts with an overview of the Fourth Amendment itself.
The Fourth Amendment: Protecting Your Privacy
The statement of the Fourth Amendment to the US Constitution 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 provisions of the search and seizure in the Fourth Amendment are all about privacy. In order to honor this freedom, the Fourth Amendment provides the protection against “unreasonable” searches and seizures by state or federal law enforcement authorities.
The flip side of the fourth is that the searches and seizures that are considered reasonable are permitted by the Fourth Amendment. Practically this means that the police may not accept your privacy concerns and they are authorized to conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:
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The police have got a probable cause to believe they would certainly find evidence that you have committed a crime, and on the basis of that a search warrant is issued by a judge, or
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The search without a warrant first being issued is justified by the particular circumstances.
The Fourth Amendment: Not Protecting Your Privacy
The Fourth Amendment applies to a search on only one condition if a person has a legitimate expectation of privacy in the place or for a thing that has to be searched. If this condition is not fulfilled then the Fourth Amendment provides no protection because by definition there are no privacy issues.
In order to determine that at the time of the search, whether a defendant had a legitimate expectation of privacy in the place or things searched the courts use a two-part test:
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Was the person actually expecting some degree of privacy?
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Is the expectation of a person objectively reasonable means that the reason must be one that society is willing to recognize?
For example, a public restroom is used by a person and he expects it not to be spied upon (the person has an expectation of privacy) and that expectation would be considered to be reasonable by most people including judges and juries (there is an objective expectation of privacy as well). Therefore, if a hidden video camera is installed by the police in a public restroom then it will be considered a “search” and would be subject to the Fourth Amendment’s requirement of reasonableness.
On the other hand, when a weapon is found by the police on the front seat of a car, then this search is not considered as a search under the Fourth Amendment because it is very unlikely that it would be thought by the person that the front seat of the car is a private place (an expectation of privacy is unlikely), and even if the person did, society would not be willing to extend the protections of privacy to that particular location (no objective expectation of privacy).
Restrictions on Private Security Personnel
Private security personnel currently outnumber police officers in the United States by three to one. This in turn will show its results that, whether you’re doing your shopping in a supermarket or a pharmacy, working in an office building, or visiting a friend in a housing project, it is more likely possible that you may be confronted by a security guard than by a police officer. Right now, the Fourth Amendment does not apply to searches that are carried out by non-governmental employees like private security guards.
For instance, you may assume that a shopping mall security guard acting on a pure hunch searches a teenager’s backpack. Inside the backpack a baggie is found by the guard containing an illegal drug. The guard has the right to detain the teenager, call on the police, and handover the drug to a police officer. The drug is admissible in evidence; this is because the search was conducted by a private security guard. As traditional police functions are increasingly exercised by private security guards, due to this reason courts may one day apply Fourth Amendment guidelines to their conduct.
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