Search and Seizure
Many citizens of Cedar Rapids and Iowa City overlook the right to say “You may not enter my home without a warrant.” This blog will cover the rights that you have and the law behind attaining a warrant and entering a home.
The Fourth Amendment of the United States Constitution states:
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, support by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
First and foremost, this amendment tells the government and their agents (primarily the police) that they cannot search someone’s home, papers, and effect without first getting a search warrant. In order for a police officer to get a warrant to conduct a search, they must first tell a judge why they believe that a crime has been committed. The judge must then determine if there is probable cause to believe that the crime has been committed. Probable cause is difficult to define but it generally means:
A reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.
Essentially, the judge must determine if the officer’s suspicion that a crime has occurred is supported by enough true facts. For instance, if an officer tells a judge they met a man at the door of his house who looked suspicious and that is why they thought he had drugs in the house, that is not supported by enough facts to support a finding of probable cause. If, however, the officer says they met the man at the house and he exhibited signs of being under the influence of marijuana and could smell the odor of marijuana emanating from his house, then the officer probably has probable cause to get the warrant.
Next the officer needs to describe the place to be searched. Generally speaking the officer will state the address and then generally describe the residence (house or apartment, color, etc.).
Finally the officer must describe the person or items to be seized. If the officer is going to seize a person, it is to arrest that person. Now when the officers describe the items to be seized, they will likely list as many things that they think that they will find. If an item is not listed in the warrant, they are not able to seize that item so they want to be as thorough as possible.
If an officer has probable cause that a crime has been committed, she adequately describes the place to be searched and the items to be seized, the judge will grant the search warrant and the officer can utilize that warrant to search that house.
Over the years, the United States Supreme Court has recognized several situations when an officer does not need a warrant. Some of those exceptions are as follows:
Consent
If an officer ask someone’s permission to search his home and permission is granted, then the officer may search the home. The permission must be knowing and voluntary. It is important to note that you can always refuse permission to search. If you deny the officer consent to search, they will then have to seek a warrant from a judge. If the judge denies the search warrant, the officer cannot search.
Exigent Circumstances
An exigent circumstance is essentially an emergency. If an officer is walking through the corridor of an apartment building and hears someone screaming in fear and has legitimate reason to believe someone is being assaulted, the officer can go into that apartment without a warrant.
Plain View
If an officer sees contraband in plain view, they do not need a warrant to seize it. For instance, if an officer is invited into someone’s house to discuss something and the officer notices a bag of cocaine on the coffee table, the officer may seize the drugs and place the possessor under arrest for possession of a controlled substance.
Search Incident to Arrest
When someone is arrested for a crime, an officer may search the person. For instance, if someone is arrested for stealing from the grocery store, they can be searched. If during the search, they are found to possess drugs, they can be charged with both theft and possession of drugs.
Terry Stops
In the landmark United States Supreme Court case Terry v. Ohio, the Supreme Court ruled that officers can frisk someone if the officer has a reasonable suspicion that the person has or is about to commit crime and that person may be armed. The frisk is for the officer’s safety. The officer’s pat down must be over the surface of the person’s clothing and the officer must be searching for weapons or other objects that could possibly harm the officer. A reasonable suspicion requires less proof than probable cause. The courts have allowed less proof to conduct a terry frisk because it is less intrusive than a full search.
Terry frisks have lead to a variation on the plain view exception to the warrant requirement. The courts have created what they label a “plain feel” exception to the warrant requirement. When an officer is conducting an Terry frisk, if the officer plainly feels contraband, they may search further and seize the contraband. For instance, if an officer is conducting a Terry frisk and feels a drug pipe, they may seize the pipe. What is more, they may then arrest the person for possession of paraphernalia and then do a search incident to arrest.
Automobile Exception
Because automobiles are mobile and it would be easy to move and hide them while an officer tries to get a search warrant, the courts have determined police officers do not have to get a search warrant to search or seize them. In order to stop a vehicle, a police officer merely needs probable cause that a crime, such as speeding, has been committed. In fact, an officer can conduct a “Terry stop” if she has a reasonable suspicion that a crime is being committed. For instance, if a car is swerving on the road, an officer may have a reasonable suspicion that the driver is under the influence of an alcoholic beverage and the officer may stop the vehicle.
Once the officer has the vehicle stopped, they may conduct a quick interview of the driver to further investigate the crime. If, during the interview, the officer determines that there is probable cause another crime is being committed, they can search the vehicle. For instance, if the officer smells marijuana during the interview, they may search the vehicle to look for the marijuana.
Inventory Search
If someone was arrested while driving their car and the officer has the vehicle towed, the officer may search the vehicle to inventory items. This is intended to protect the vehicle owner’s property.
This is only a brief discussion on search and seizure. If you think you have been improperly searched, you should contact an attorney immediately.
It is interesting to note that Article I, Section 8 of the Iowa Constitution says the exact same thing as the Fourth Amendment of the United States Constitution (some of the punctuation is different). Despite the fact that both constitutions say the same thing in regards to searches and seizures, the Iowa Supreme Court has interpreted Article I, Section 8 of the Iowa Constitution in a way that gives citizens more rights against searches and seizures.
If you have any questions on search and seizure or potential infractions, don’t hesitate to reach us! We’re located in Cedar Rapids, Iowa and can easily service the Iowa City area as well. Schedule your free consultation to speak more about your case.