Privacy is central to the American notions of freedom and autonomy. But what kind of privacy do our laws really protect? The Fourth Amendment to 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This amendment expresses an honorable intention – to not “unreasonably” search a person or their property. But what is reasonable and what circumstances the amendment applies to is not so clear cut. If you would like more information or feel like you and/or your belongings have been unreasonably searched, then don’t hesitate to contact our criminal law firm in Minnesota today.

What Can Be Searched?

Generally speaking, whether the fourth amendment applies or not turns on the question of whether a person has a reasonable expectation of privacy. This is determined by asking whether a person has the intent to keep some thing or place private and also whether an objective person would have had the intent to keep that thing or place private. Factors used to decide what can be searched are the place where the search is done, the reason for the search and who the people are that are being searched and doing the search.

The court is less likely to allow a search, particularly one done without a warrant, when police are searching a home because a person has a higher reasonable expectation of privacy in their home. A court is more likely to allow a search if a person is searched on the street or in their car.

What Is Reasonable?

The notion of reasonableness is subjective and gives discretion to judges to determine what kind of search is and is not reasonable. While some argue this discretion allows judges to tailor “reasonableness” to fit the circumstances, this discretion also allows a less predictable outcome and gives an individual judge the power to either admit or disallow evidence as they see fit. There have been many court cases regarding search and seizure that give courts a guide to answering continuing questions about what is reasonable, but this still doesn’t mean judges can’t use their own discretion regarding this rule.

Generally, police need a warrant issued by a judge to search or seize anything attached to you, your vehicle or your home. However, an exception applies if:

  • The search passes a reasonableness test. The court will balance the interest of the police in investigating a crime against the intrusion into a person’s privacy. Common examples of police abusing this power is a smell of drugs or signs that a person is intoxicated which are hard to disprove in court.
  • Life or safety is at risk.
  • The search is done during an arrest to locate weapons that might be used to harm the police officer.
  • A vehicle is being searched. This is because vehicles are transient, and evidence can be easily lost if an officer lets a person drive away while waiting for a warrant.
  • The police are seizing or searching a container.
  • A person has given them consent to search.

What Happens If My Fourth Amendment Rights Have Been Violated?

If your fourth amendment rights have been violated resulting in a criminal charge, any evidence obtained during that illegal search can be suppressed (thrown out).

If you are stopped by the police, do not physically resist but make it clear that you do not consent to a search. You have the right to refuse to speak to the police until you contact a criminal defense attorney.

If you have found yourself in a situation that you feel like your rights have been violated by the police, then you’re going to want proper representation. Contact our criminal law firm today for criminal charges you may be facing in Minnesota or Wisconsin.