In the United States, an individual’s liberty rights are protected by the government through the Constitution and its Amendments. The first ten amendments are known as the Bill of Rights. Although the Bill of Rights originally applied to the federal government only, many of the Amendments were “incorporated” (that is, made to apply) to the States via the Fourteenth Amendment. One of the most powerful protections against government intrusion is the prohibition against unreasonable search and seizure via the Fourth Amendment. Note that the Fourth Amendment, like all of the Bill of Rights, only impose limitations upon government actions, not private citizens. Among other provisions, one of the key elements of the Fourth Amendment is the protection against “unreasonable searches and seizures.”
When police officers violate an individual’s Fourth Amendment rights, any incriminating evidence seized cannot be used against you at trial. This is known as the “exclusionary rule,” and it is designed to deter unlawful police conduct. Additionally, any evidence that was discovered as a direct result of the unlawful police conduct similarly cannot be used against you, as such evidence is “fruit of the poisonous tree.”
One sentence, but it has many different elements to dissect. The first portion states that people are protected “against unreasonable searches and seizures.” Notably, this does not prohibit government intrusion against ALL searches and seizures, but only unreasonable ones.
Thus, the threshold inquiry in any Fourth Amendment analysis is: Did a search or seizure, within the meaning of the Fourth Amendment, take place? If there was no search or seizure, then neither the Fourth Amendment, nor the exclusionary rule, apply. In determining whether a search took place, the Supreme Court has listed a two-part test: 1) Did the person possess a subjective expectation of privacy? 2) Is it one that society is prepared to recognize as reasonable? Both questions must be answered in the affirmative in order for the Fourth Amendment to apply. So, for example, a defendant who carries a gun in a clear backpack has not demonstrated a subjective expectation of privacy — he cannot reasonably claim that he expected the contents of his backpack to be private from the world when he openly displayed it in a clear backpack. But a defendant who puts a gun in an opaque backpack has demonstrated a subjective expectation of privacy.
Even if a defendant has demonstrated a subjective expectation of privacy, however, a “search” may not have occurred if the expectation is not one that society is prepared to recognize as reasonable. So for example, that defendant who carries the gun in his backpack may have a subjective expectation of privacy, but if he attempts to board an airplane, it is not reasonable for him to believe that his backpack would not be searched. On the other hand, if he is simply walking through a park, his privacy expectation would be considered reasonable. Only after both prongs are satisfied has a “search,” within the meaning of the Fourth Amendment, taken place.
A “seizure,” on the other hand, occurs when an individual’s freedom of movement has been restrained “to a degree that a reasonable person, innocent of any crime, would not feel free to leave.” Note that this is also an objective test, not a subjective one. It does not matter whether the defendant himself felt that he was not free to leave; rather, the circumstances must be search that a reasonably objective person did not feel free to leave. Common considerations are whether an individual was handcuffed, the number of police officers around the individual, whether weapons were displayed, any explicit declaration that the individual could not leave, and where the encounter took place.
If it has been established that either a “search” or a “seizure” took place, the next inquiry is to determine whether such action was “unreasonable.” According to the text of the Fourth Amendment, not all searches or seizures are prohibited; only unreasonable ones. Whether a search or seizure was reasonable depends on the circumstances. So, for example, a police officer generally cannot approach you and forcibly search you without your consent. There are situations, however, where a search may be permissible. In the case, Terry v. Ohio, the Supreme Court determined that a police officer lawfully searched the defendant after the officer saw him lurking around a jewelry/pawn store in the very early morning, after the store had closed while wearing dark clothing and looking around surreptitiously. Based on these facts, the Supreme Court held that the officer reasonably stopped and searched the defendant. Incidentally, this case gave rise to the police procedure known as “Stop and Frisk,” also known as a “Terry stop.” Once it has been established that a reasonable search or seizure occurred, the next step is to determine whether a warrant was lawfully issued or, if not, whether any of exceptions to the warrant requirement applies.
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