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The Fourth Amendment

“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”

History

In the Colonial United States, the British government would often issue “general warrants” to search the houses and belongings of the colonials.  These general warrants were issued without any british_troops_entercause and gave the British tremendous leeway when they wanted to conduct a search  of someone’s home.  This was one of the major reasons behind the Revolutionary War.  Our Forefathers drafted a constitution that was designed to protect us from government intrusions into our homes and personal belongings.  This protection comes from the Fourth Amendment to the United States Constitution.  Further, each State has its own constitution with virtually identical language to the United States Constitution.  Rhode Island’s Constitution provides search protections in section 6 article 1

 

The Warrant Requirement

The Fourth Amendment protects citizens from unreasonable searches.  The text of the Fourth Amendment does not specifically state that the police need a warrant to conduct a search, however the United States Supreme Court has interpreted “unreasonable searches” to mean that police need a warrant to conduct a search.  Therefore, if the police conduct a search without a warrant, a court is going to view that search as per se unreasonable.  If you have been subjected to a police search contact Attorney Peter Calo immediately to ensure that your rights will be protected.

What is a Search?

When determining if a search has occurred under the Fourth Amendment, the word “search” is defined much differently than in the traditional sense of a search.  In order for a search to occur under the Fourth Amendment there are two very important requirements.  First, the person conducting the search must be a government official.  Second, the police must intrude into an area where a person has a reasonable expectation of privacy. 

1. Government Official

In this context when referring to a government official it is meant as a police officer.  Although, a government official could mean a public school teacher, government administrator, etc…  The Fourth Amendment protections do not apply when a private citizen conducts a search.  However, if that private citizen is acting on behalf of the police, the citizen would be considered a government official.  For example, if a police officer asks a private citizen to conduct a search, then that private citizen is now an agent for the government and Fourth Amendment protections would apply

2.  Intrusion into an Area of Reasonable Expectation of Privacy

This requirement can be more difficult to define than the Government Official requirement.  One needs to understand that the area of reasonable expectation of privacy is an objective standard.  In other words, it does not matter if the person subjected to a search felt as if he had a reasonable expectation of privacy into that area.  Rather, the questioned is asked of whether society would consider that area to be an area of privacy.  Would a reasonable person in the suspect’s position expect privacy into that area?

The determination of whether one was subjected to a search can be very technical.  If you have been subjected to a search contact Attorney Peter Calo for a free consultationAttorney Calo has vast experience and knowledge in the laws on search and seizure and he will vigorously fight for your rights!

Exceptions to the Warrant Requirement

A search authorized by a warrant issued by a neutral magistrate is always going to be preferred over a warrantless search.  However, there are many exceptions to the general rule that the police need a warrant to conduct a search.  Courts allow these exceptions to the search warrant requirement because they are reasonable.  The most common exceptions to the warrant requirement are motor vehicle searches and exigent circumstances.

Motor Vehicle Searches

Because motor vehicles are readily mobile and highly regulated, the United States Supreme Court has ruled that police may search a motor vehicle without a warrant as long as the police have probable cause to believe the vehicle contains evidence of crime or contraband.  If the police do have probable cause to search the vehicle, they may search anywhere in that vehicle where the evidence or contraband may be. This includes the trunk, glove box and containers.  This is known as the Carroll Doctrine, which Rhode Island has adopted.  This does not mean, however, that every warrantless search of a motor vehicle is legal.  If you have been subjected to a motor vehicle search, contact Attorney Peter Calo today for a free consultation.

Marijuana and Motor Vehicle Searches

Rhode Island has decriminalized the possession of an ounce or less of marijuana.  If one is in possession of an ounce or less of marijuana that person is not arrested but rather summonsed into Rhode Island Traffic Tribunal and it is classified as a civil offense.  The ramifications of the decriminalization will be great.  When possession of marijuana was a criminal offense the police could conduct a warrantless search of a motor vehicle based on the odor of burnt marijuana.  However, now that it is no longer a criminal offense, but rather a civil offense, a strong argument can be made that the police cannot conduct a warrantless search of a motor vehicle based solely on the odor of burnt marijuana.  Massachusetts Supreme Court has already made that ruling.  It is just a matter of time before our Rhode Island Supreme Court and the United States Supreme Court will rule on this issue.  If you have been subjected to a motor vehicle search similar to this, or any search, contact Attorney Peter Calo for a free consultation

Exigent Circumstances

The chief evil that the Fourth Amendment was designed to protect is police intrusion into the home.  Therefore, there are only very few exceptions that allow the police to enter your home without a warrant.  The mere entry into a home by a police officer is considered a search The police may conduct a warrantless search if they are faced with a true emergency or an exigent circumstance.  This exception mostly applies when police enter a home without a warrant which is considered a search even though they police are not “searching” anything in the traditional sense.  The mere act of entering a home is considered a search and in order to do so the police need a warrant or an exigent circumstance.  Although exigent circumstances gives the police the authority to enter a house without a warrant they may only do so to address that emergency and may not conduct any further searches without a warrant.

Three Exigent Circumstances

There are only three types of Exigent Circumstances:

  • Personal Safety
  • Preserve Evidence
  • Prevent a Suspect from Escaping

 

Personal Safety

If the police believe that someone’s safety is at risk, they may enter a house without a warrant.  Once inside the house, the police only have the authority to address that safety risk.  Once that is done the police cannot conduct any further search without a warrant or another exigent circumstance.

Preserve Evidence

The may enter a house without a warrant if the police have cause to believe that evidence may be destroyed.  This exigent circumstance has a major caveat, however.  The crime for which the police may conduct this entry must be a serious crime.  The police are not allowed to enter a house to preserve evidence if the evidence is for a minor crime. 

Prevent Suspect from Escaping (Hot Pursuit)

This exception is also known as Hot Pursuit.  When the police are in hot pursuit of a suspect they may enter a residence to continue the pursuit.  Similar to preserving evidence, this exception requires that the crime be serious in nature.  Further, once the police apprehend the suspect in the house they may not further their search for any evidence outside of a warrant or another exigent circumstance.

Contact Attorney Peter Calo today for a Free Consultation

Being subjected to a police search can be humiliating and stressful.  In order to ensure that your rights have not been violated you need the help of an experienced attorney.  Attorney Peter Calo has successfully defended persons whose Fourth Amendment protections against searches have been violated.  Contact him today to fight for your rights.