Search & Seizure
legal & illegal
Van Wagner & Wood, Wisconsin Criminal Defense
The Fourth (4th) Amendment to the Constitution of the United
States of America prohibits unreasonable searches and seizures by federal
law enforcement agents. The Fourteenth (14th) Amendment to the Constitution of the United States of America imposes the 4th Amendment upon the states and to law enforcement agents within the states. Unreasonable searches and seizures are prohibited; reasonable searches are not prohibited. The 14th Amendment rights to privacy do not extend
into every aspect of a person's private affairs.
Police need not advise you of your rights
Police are not responsible for advising you of your
rights to refuse an illegal search. They are not required to tell you if and when they can make a
permissible search. Police need not
tell you that you can withhold permission for them to enter your home, nor that police have a right to seize anything in plain
view. [See also Arizona vs. Gant, Illegal Search & Seizure, OWI Arrest]
U.S. Supreme Court Limits Searches Without Warrant
In an April 2009 United States Supreme Court decision (5-4), the US Supreme Court ruled that once a suspect is placed under arrest and handcuffed, police may search the suspect's vehicle without a search warrant only if the suspect is within reach of the vehicle, or if the police reasonably believe that evidence can be found in the vehicle that will prove the offense for which the suspect was placed under arrest.
Purpose of Search Leading To Seizure & Arrest
The purpose of a search is to uncover and expose evidence
that can then be seized by the police. The purpose of a seizure is to
acquire evidence that can then be used against a defendant to prosecute
that defendant for committing a crime. Under the Constitution, a stop is a search and
an arrest is a seizure.
The 14th Amendment to the Constitution is based upon a premise:
every citizen of the United States has a right under the Constitution
to a reasonable expectation to privacy. However, those rights are limited.
Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.
Legal Search & Illegal Search
A search, in and of itself, violates a person's reasonable
expectation of privacy. Searches are either permissible or impermissible.
Permissible searches are often called legal searches, while impermissible
searches are often called illegal searches or prohibited searches.
Permissible Searches Are Reasonable Searches
If the violation of a person's expectation to privacy is
reasonable, then the search is permissible. A reasonable
search can occur with explicit consent or implicit consent. If a person
is asked if they may be searched and that person then responds affirmatively, consent has been given to the search. That type of search would be a search by explicit permission - that type of search is reasonable. By giving consent, the searched person no longer has a reasonable
expectation to any privacy.
If contraband, paraphernalia, a weapon, or some other piece
of evidence or if criminal activity is "in plain view", an exception
to consent arises under the law. That type of voluntary exposure allows
the police to view the article without a search. Since a search is not
needed to view something "in plain view", then there is no violation
of a person's reasonable expectation to privacy. To put it another way,
the law assumes that if the person intended that which was "in plain view" to be
kept private, then he or she would not have placed it in a position where
it could be easily viewed by anyone.
Legal Seizure & Illegal Seizure
Within the context of the Fourteenth Amendment, a police
stop is a seizure. If the seizure is reasonable, then it is permissible,
otherwise it is a violation of a person's Fourteenth Amendment rights
(also commonly termed an illegal search and seizure or prohibited
If a police officer observes criminal activity, or activity
which would lead a reasonable person to conclude that it was of a criminal
nature, or if an informant provides sound and verified information to
the police officer about a criminal activity, then a subsequent seizure
is reasonable and permissible. If at the time of a stop, a police officer
sees or has a reasonable belief that the suspect is armed, the officer
may "pat down" the suspect and seize any weapons that could
cause harm to the officer or another person during an arrest.
Checkpoints - Legal or Illegal?
Checkpoints can be used for a variety of reasons, such as to find drunk
drivers, to search for an escaped convict, or to simply check
for vehicle registrations. So long as the method employed to select the
automobiles that are stopped is reasonable and objective, the checks are
permissible under the law. In fact, an officer can ask all occupants of a vehicle to
step out of the vehicle, and his request will not violate those person's
rights. However, if the officer searches the vehicle, he must have probable
cause for the search or a search warrant. If he has a search warrant,
then he presumably has probable cause (it was, or should have been, required to get the warrant).
A checkpoint used to snag a drunk driver may also be permissible (legal), but the checkpoint must be completely voluntary, or the resulting arrest of a person for driving while under the influence will be illegal. [See also Checkpoints in Wisconsin]
In almost all instances, a search warrant is required for
the police to enter a private dwelling. In most other instances when a search warrant is not required, the officer must have probable cause.
However, there are exceptions to the rule.
If an officer has an arrest
warrant and in the process of executing the warrant in the suspect's
yard the suspect gets away and runs into his home, the police have a right
to enter the home in "hot pursuit" to make the arrest.
If an officer has probable cause (more than a reasonable
belief that a crime has been committed), and he cannot take the time to
obtain a warrant without loosing evidence or the suspect, then he may
enter and search and seize without
An officer may also search a home if he has consent to do
so, however, whether that consent allows permissible search of another
dwelling member's belongs is quite another story. If the person who gives
consent to the search has authority to give the consent, then the search
may be permissible so long as it does not violate the rights of another
person. The mere sharing of a home (roommates) does not give one roommate
authority to consent to a search of the other roommate if there existed
a reasonable expectation to privacy.
The right to a reasonable expectation to privacy is a personal
right to privacy of the person's physical body and his immediate surroundings.
A search includes a person's clothing, body, and immediate surroundings
or those surroundings within his reach. For example, a legal search of a person sitting in a recliner would include the immediate area surrounding the recliner as well as the person's body.
If a search or a search and seizure was impermissible, under
the exclusionary rule, the evidence gathered from that seizure is inadmissible
in the defendant's criminal trial,
except that the evidence may be used to disqualify a witness (called impeaching
the witness). And as you might expect, there are exceptions to that rule,
too. If the search was to protect the public, if one or more legal searches
and one or more illegal searches are conducted, or if the search revealed
evidence that would have been otherwise known or produced by some other
means regardless of the search, then the search - even though illegal
- and the evidence gathered can be admitted into evidence
The exclusionary rule prohibits evidence obtained in an illegal manner from being used against a person during a criminal trial. Throughout the dialogue above, notations are made when exceptions exist, but even these do not cover all of the exceptions to the rules of evidence for criminal prosecution. The exclusionary rule has many exceptions to determine which is legal and illegal evidence. As well, it is only one legal doctrine used to analyze evidence in a criminal trial, and each procedure (search and seizure) must be analyzed separately.
This website merely mentions some of the highlights of various laws,
but it cannot nor does it intend to give you legal advice.
If you believe that your rights have been violated, if you have been searched, if your
property has been seized or stolen, or if you have questions about your arrest or charges, please contact the attorneys
at Van Wagner & Wood.
Free Initial Consultation
Chris Van Wagner & Attorney
Tracey Wood, the founders of Van Wagner
& Wood, exclusively devote their professional time and energies
to defending people who have been charged (or convicted) of a criminal
offense or drunk
driving. Van Wagner & Wood's criminal defense attorneys will provide you with a brief but professional
very straightforward and honest assessment of your case at first glance.
That initial consultation is free, but it will give you the information
that you need to make the right decisions about your defense.
To speak with an attorney right away or schedule a conference, please call (608-284-1200 in the
Madison area, or 1-866-262-4599 statewide) the attorneys
at Van Wagner & Wood for a brief but professional free first-impression
analysis of your case. You can also send your case information online, or email the attorneys.