Often the most important evidence admitted at a criminal trial is evidence obtained as a result of a search and seizure. Most of the time, a search and seizure is conducted lawfully; however, police officers do sometimes get overzealous and exceed their authority, resulting in an illegal search and seizure. In the United States, the Fourth Amendment to the U.S. Constitution protects us against just that – an unreasonable search and seizure. What exactly is an unreasonable search and seizure though? An Omaha criminal attorney answers that question by explaining the 4th Amendment warrant requirement.
The Fourth Amendment – What Does It Say?
The U.S. Constitution provides you with a number of important rights and privileges, most of which are located in the first ten amendments to the Constitution, collectively known as the “Bill of Rights.” One of those rights is the right to be free from “unreasonable searches and seizures” located in the Fourth Amendment, which reads as follows:
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.
What Does the 4th Amendment Mean in Practice?
The 4th Amendment was included in the Bill of Rights because the creators feared a government that could search at will, without any restraint. With that fear in mind, the 4th Amendment was intended to require a law enforcement officer to first obtain a warrant before being allowed to search your person or your property. Over the years, the courts have diminished the strength of the 4th Amendment warrant requirement, particularly as it applies to searches of your person or property other than your home. The 4th Amendment does, however, still serve as a protection against unreasonable searches and seizures when the police go too far and overstep their authority.
What Is a Warrant and How Is One Obtained?
In the context of the 4th Amendment, a warrant is required before a search may be conducted. A warrant was originally required to be in writing; however, a police officer can now obtain one telephonically when time is of the essence. Typically, however, a warrant is requested through the use of a probable cause affidavit submitted by a police officer. The affidavit must provide sufficient information to create probable cause to conduct the requested search. Probable cause is a term that has been argued over for centuries. For purposes of discussing the warrant requirement, however, probable cause can be defined as a “reasonable belief that evidence of a crime will be found in the place to be searched.” The affidavit is then presented to a judge or magistrate who must be convinced that the information contained in the affidavit amounts to the requisite probable cause and that all other requirements for the issuance of a warrant are met. For example, the request must specifically state the place to be searched and the items to be seized. If the request is too broad, a judge will not sign the warrant. If the judge is satisfied the requirements are met, he/she will sign the warrant. This gives the police the legal authority to conduct a search and seizure.
What If the Police Search without First Obtaining a Warrant?
Despite the 4th Amendment warrant requirement, searches and seizures are conducted all the time without a warrant. Some of these have been found by the courts to be exceptions to the warrant requirement. For example, a vehicle on a public roadway does not require a warrant to be searched. Likewise, the police can conduct a “pat down” search of your person without a warrant to check for weapons or contraband without a warrant. Your home remains covered under the warrant requirement, unless a specific exception applies. Exceptions to the warrant requirement for the search of a home include consent, plain view, incident to an arrest, and exigent circumstances. If, however, law enforcement officers conduct a warrantless search and seizure when an exception does not apply, or if there is a problem with the warrant obtained by the police, the search may be declared illegal by a judge. If that happens, the evidence seized during the search is generally inadmissible at trial.
Contact an Omaha Criminal Attorney at Petersen Law Office
If you have been charged with a criminal offense in the State of Nebraska, consult with an experienced Omaha criminal attorney as soon as possible to ensure your rights are protected. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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