Protection from overbroad police searches is a found principle of American society; it is codified in thefourth amendment which reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonablesearches 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 interpretation of the fourth amendment and the cases and laws that followed has filled books. It can be separated into three categories – searches of the home, searches of the person, and searches of the automobile. Each topic’s history and meaning to you will be explored in turn; first, searches of the home.
The sanctity of one’s home comes from a concept called “the castle doctrine”. The roots of this doctrine can be traced back to Roman law, but modern interpretations follow English law which stated “a man’s home is his castle”. This doctrine gave guarantees of privacy and defense. This tradition protects the home more than it protects an automobile or person, but there are options available to police to search a home.
There are two kinds of searches: warrant searches and warrantless searches. Warrant searches are searches conducted by officers with a warrant. A warrant must be based upon “probable cause.” Probable cause is a complicated topic in and of itself; simply defined, it is a reasonable suspicion supported by facts, which can be articulated, strong enough to lead a prudent person to conclude that the facts are probably true. Based on probable cause, an officer would request a magistrate or judge to sign the search warrant. The warrant must clearly state the object (or objects) to be searched for and the place to be searched. It is folly to assume that a warrant makes a valid search; there can be problems with the probable cause the warrant was based upon, there can be problems with the specificity of the items or places involved in the search, and there can be problems with the means by which the search was conducted.
A warrant is not always necessary, although the home is more protected from warrantless searches than an automobile or a person. To explore the exceptions allowing for warrantless searches of the home, the process of searching needs to be divided into two separate steps: 1) entry into the home and 2) search of the home.
The officers must legally enter the home and the items discovered must be legally ‘seized’. The most common exception for a warrantless entry or search is consent. If an officer asks for permission and you grant him permission to enter and search your home, a warrant is not necessary. If a person “possessed common authority over or other sufficient relationship to the premises or effects to be inspected”, they could also consent to a search. For example, your spouse could consent to a search of your shared home or your friend could consent to a search of the storage unit you rent and share. This does not mean your landlord can consent to a warrantless search of your apartment.
The other exceptions are plain view and hot pursuit. Hot pursuit is when the officer is urgently chasing a suspect, usually a felon, or police and/or private lives are in danger. It allows officers to enter private residence. The other exception is “plain view” which allows the police to seize an illegal item in plain view. An officer must be lawfully in the location for the plain view doctrine to apply. What this means is that the officer must have a warrant or meet one of the exceptions for entering a domicile for the plain view doctrine to apply. Additionally, the item must be immediately apparent as contraband.
The interplay between these exceptions can lead to some interesting hypotheticals. For example, if an officer is present to serve an arrest warrant and sees a large pile of drugs on the table, those drugs could be seized. But if the officer is present to serve an arrest warrant and sees a stereo matching a description of a recently stolen item, he could not look at the serial number on the back of the stereo because it is not in plain view or immediately apparent that the item is stolen. The officer would need a warrant to pick the stereo up and check the serial number.