Search and Seizure and Plots – A Few Tips For Writers (Part 1)

Recently I received a question from a writer about police search and seizure. It is a common subject in the headlines. Usually these news stories and commentaries cover an illegal search and seizure by police of a home, business, car, or person under arrest. For example, an article in the New York Times this week covered your rights if border agents want to search your phone. In the post-Snowden years, there have been umpteen articles about the collection of personal data by the government without any suspicion of wrongdoing.

For writers, news articles like search and seizure stories can, by way of inspiration, color our fiction with interesting story events, obstacles for our protagonists, snippets of character backstory, or even clever plot twists. Because search and seizure law is a broad topic and constantly in flux, I will break the subject down in a couple of blog articles to help inform writers of the basics when crafting scenes and plots with search and seizure elements.

Today, Part I of search and seizures.

Search and seizure basics

The Fourth Amendment to the U.S. Constitution, as framed by the U.S. Supreme Court, protects a citizen from unreasonable search and seizure by state or federal law enforcement authorities. This safeguard limits the power of authorities to:

  1. make arrests;
  2. search homes, businesses, properties, and people; and
  3. seize contraband and other illegal items.

Generally, a search worthy of protection under the Fourth Amendment occurs only when a person has a legitimate expectation of privacy in the thing or placed searched. Courts ask two questions to determine if a search and seizure is reasonable.

  1. Did the person think the place or thing searched was private?
  2. Was that expectation reasonable in society’s view?

For example, there is a legitimate expectation of privacy with things like clothing, luggage, cars, houses, hotel rooms, public restrooms, businesses and the person himself. There is not an expectation of privacy with items left in plain view, like a pistol on the hood of a truck or on the backseat of a car, or items thrown in the trash. There is not an expectation of privacy with items discarded, like the DNA on a cigarette butt.  There is not an expectation of privacy in the car you are riding as a passenger, or a house in which you are a guest, or the activities conducted in a field or backyard that is visible from the road. Or say police stop you for a routine traffic violation and you then consent to the police officer searching the car. The police find drugs in the glove box. Prior to your consent, there was an expectation of privacy and a search would have been unreasonable. After your consent, the expectation was lost and the search was reasonable.

How to determine if a search and seizure is reasonable

Courts consider two criteria when determining if a search and seizure is reasonable.

  1. If police have probable cause to believe they will find evidence of a crime committed and a judge issues a warrant, then the search is deemed reasonable; or
  2. If particular circumstances justify it, a warrantless search can be deemed reasonable.

Search warrants

A search warrant is a judicial order issued by a judge or magistrate. It gives law enforcement authorities permission to search a location or person and seize evidence of a criminal offense. Police must show that a crime has occurred, and evidence or contraband linked to that crime would most likely be located on the property or on the person himself, i.e. probable cause. To prove probable cause requires evidence based on police observations or the observations of others, like informants, victims, or witnesses, who have detailed, firsthand information. If the only evidence offered by police is that of the informant, the police must prove the informant is reliable.


The search and seizure

Once police have a search warrant, they have the authority to search for evidence listed in the warrant in the place specified without permission of the owner. If the warrant specifies drugs in the backyard, then the search is normally limited to the backyard and cannot be extended to the house. Police can seize evidence if it is in plain view or if they come upon it in the course of the search. However, if the warrant specifies an AK-40 assault rifle, and police search a small box and find heroine, a judge would conclude the heroine was obtained illegally because a small box could not have hidden an AK-40.

There are, however, exceptions to this general rule.  Police can conduct a wider search to ensure their own safety,  if they believe there is destruction of evidence occurring in other locations on the property, or they locate other evidence based on what was either uncovered during the search or found in plain view. There are also exceptions that justify a warrantless search and seizure, which I’ll discuss in Part II.

Police normally can only search the person named on the warrant. If police arrive at your friend’s house with a warrant to search your friend, they cannot search you too. Unless, however, they believe you might be involved in the criminal activity too or if they need to ensure you are not carrying weapons.


Violation of Fourth Amendment rights

When a search is deemed unlawful, then there is either no probable cause, no warrant, or the police searched outside the scope of the warrant. If so, then the exclusionary rule applies. Any evidence obtained from an unlawful search will be excluded from a criminal case. For example, if police search a home without probable cause, a valid search warrant, or special circumstances to justify the search (which I’ll discuss in Part II), any evidence seized during the search, like a confession or drugs, cannot be used against the homeowner in a criminal case. Not only is the improperly seized evidence inadmissible in court, so too is the additional evidence that police derived from the initial evidence. This is called the “fruit of the poisonous tree.”

The case is not necessarily dismissed because of an unlawful search, however, because the prosecutor may have enough other evidence to prove the defendant guilty. Also, even though evidence was illegally obtained, it is not a complete bar to the use of the evidence at trial. A judge can use the evidence later when deciding on an appropriate sentence for the convicted defendant. The evidence can also be used in a civil case, or to impeach a witness.

For example, if cocaine was found at a defendant’s apartment during what a judge determined at trial to be an illegal search, the cocaine cannot be admitted into evidence. But if the defendant testifies at trial to never having owned cocaine, the evidence of the cocaine found in the defendant’s apartment can be used to attack the credibility of the defendant’s testimony.

In Part II, I will review circumstances that justify a warrantless search and seizure – consent, plain view doctrine, emergencies, in the course of a valid arrest, and pat-downs.

If you have specific questions about a search and seizure in your plot, let us know. We are happy to help.


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