Law Blog

What you need to know about the 4th Amendment

The 4th Amendment of the United States Constitution bars the government from conducting unreasonable searches and seizures.

The most common place the 4th Amendment is triggered is traffic stops. The stop itself is a seizure of your person, which triggers the 4th Amendment. Any subsequent search of the vehicle triggers the 4th Amendment, and any the seizure of any items from the vehicle triggers the 4th Amendment.

In order to pull you over, the police must have either a reasonable suspicion that criminal activity is afoot or probable cause that a crime is being committed; crimes include traffic violations.

The 4th Amendment protections afforded the search of a vehicle are less than the protections afforded the search of a home. This is often referred to as the Automobile Exception. There are instances where the police may search a vehicle without obtaining a search warrant. The police may search a vehicle if they have probable cause that there is unlawful contraband, or evidence of a crime, located within the vehicle. For instance, the odor of marijuana emanating from a vehicle is probable cause for the police to search the vehicle (at least in a state where marijuana is illegal). There are other situations where the police can search a vehicle without a search warrant, such as a search incident to an arrest and an inventory search of a vehicle.

The 4th Amendment provides more protection to an individual’s residence than a car. The police cannot search a residence without first obtaining a search warrant. A search warrant must be issued by a judge who finds that probable cause exists to search the residence; probable cause that illegal contraband or evidence of a crime is located in the residence.

There are exceptions to this rule as well. For instance, the police can enter a home without a search warrant if exigent circumstances exist. A prime example of an exigent circumstance is if the police have probable cause to believe that there is evidence located in a home and there is a threat of the imminent destruction of that evidence.

Finally, the most common way the police search a vehicle or residence is by consent of the occupier.

What does this mean to you?

Here are a few basic situations in which you can exercise your rights:

• You do not have to consent to the search of your home or car. If law enforcement asks for consent to search, you can say no. They may go obtain a search warrant (home) or call a drug dog to walk around your vehicle (a positive “hit” is probable cause to search), but you do not have to voluntarily allow them to search your home or your car.
• While this post is about the 4th Amendment, don’t forget your 5th Amendment rights! You do not have to talk to the police! If the police want to question you, advise them you would like to speak with a lawyer first! And then call John.

While 4th Amendment issues appear in all sorts of criminal cases, they most often appear in Drug Cases or DUI defense cases.

If you’re charged with a Drug crime or a DUI, call John to discuss your situation.

If you have questions about whether you should talk with the police, or allow the police to search your property, call John to discuss your situation.