Now that you know what a search and seizure actually is – and what it is not – let’s consider the Fourth Amendment and its language regarding searches and seizures within the United States. The Fourth Amendment 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.
There are a couple of things that a (potential) victim of search and seizure should pay attention to. First, what constitutes an unreasonable search and seizure? According to the language of the amendment above, an unreasonable search and seizure is one that is executed without:
- A warrant; or
- Probable cause.
A warrant must be issued by a court, and it must name the person or place that will be searched, and the items that may be seized if discovered upon a search.
In order for a warrant to be granted, probable cause must exist. The Legal Information Institute of Cornell University Law School states that, “Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed…or when evidence of the crime is present in the place to be searched…” The following is an example of probable cause:
The murder of a person is committed. A witness testifies that they saw Suspect A fleeing the scene. Upon asking the witness to come in for questioning, they notice that the witness has stains that resemble blood on their clothes, and that their alibi does not stack up against other witnesses’ testimonies. As such, they have reasonable basis for believing that Suspect A committed the crime, and ask the court for a warrant to search the suspect’s home.
It should also be noted that under exigent circumstances, probable cause may be enough to justify a warrantless search. Exigent circumstances simply refer to the general warrant requirement per the Fourth Amendment, and occurs when probable cause exists but there is no time to request and secure a warrant. Consider the situation above: If police officers knocked on Suspect A’s door and, when asking Suspect A to come in for questioning, saw through the doorway blood and weapons matching the murder weapon, they may have probable cause to search the home then without a warrant.
The take-away from this section should be that in almost all cases, you have the right to be protected against unreasonable search and seizure, and an unreasonable search and seizure occurs when the officer conducting the search (or seizure) does not have a warrant that is authorized based on probable cause, or does not have probable cause and reason enough to justify a warrantless search. If this right is violated, you have the right to legal recourse.
