Home > Supreme Court Drama > Search and Seizure

Search and seizure are tools used by law enforcement officers to fight crime. When a police officer investigates a murder at the scene of the crime, she searches the place. If she finds the murder weapon, she seizes it as evidence. If the police officer finds the criminal, she arrests him. An arrest is a seizure of a person.

Before the United States was born, Great Britain conducted searches and seizures in the American colonies using general warrants and writs of assistance. These were documents that allowed British officer to enter anyone's home to look for smugglers and others who violated trade laws. British officers used these warrants to search homes and arrest people even when there was no evidence of a crime.

America's founders did not want the federal government to have such power. Privacy was something most Americans cherished. They decided to protect privacy by adopting the Fourth Amendment to the U.S. Constitution. The Fourth Amendment says law enforcement officials may conduct searches and seizures only when they have good reason to believe there has been a crime.

The Fourth Amendment was written to limit the power of federal law enforcement. Until the mid-1900s, state and local law enforcement did not have to obey the Fourth Amendment. The Fourteenth Amendment, however, says states may not take away liberty, or freedom, unfairly. In Wolf v. Colorado, the U.S. Supreme Court decided that the Fourteenth Amendment means state and local law enforcement officials must obey the Fourth Amendment.

Warrants and Probable Cause

The Fourth Amendment says, "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." In short, the Fourth Amendment requires law enforcement to have a warrant and probable cause to conduct a search and seizure or to make an arrest.

A warrant is a document issued by a neutral person, such as a judge or magistrate. If law enforcement officials were allowed to issue their own warrants, the Fourth Amendment would not give Americans much protection. Police officers could just write a warrant anytime they wanted to enter a house or arrest a person, just like Great Britain did with general warrants. If a neutral person issues the warrant, he can make sure the police have a good reason to conduct the search or seizure.

Under the Fourth Amendment, a warrant must describe the place to be searched and the person or things to be seized. This was meant to end the British practice of using general warrants to search anywhere and arrest anyone. In the United States, for example, a warrant might specify that a police officer may search a person's business. If the officer does not find evidence of a crime, he cannot search the business owner's house and car, too.

To get a warrant, law enforcement officials must prove to the neutral judge or magistrate that they have probable cause. This is a legal term that means the officers have good reason to believe that a crime has been committed. It also means there is good reason to believe the place to be searched has either evidence of the crime or criminals to be arrested. If police officers, informants, or other citizens swear under oath to such information, a neutral magistrate can find probable cause to issue a warrant.

The warrant and probable cause requirements are the general rule under the Fourth Amendment. There are two main exceptions for arrests and automobiles.

Arrests

When a police officer sees someone commit a crime, she may arrest him without getting a warrant. For example, if an officer sees one man attacking another, she may arrest him on the spot. Making the officer get a warrant would allow the criminal to escape. The same rule applies when the police see someone who is wanted for committing a felony. (A felony is a serious crime, such as murder.) To make an arrest without a warrant, however, the officer still needs probable cause to believe the person she arrests has committed a crime.

When an officer makes an arrest, she may conduct a limited search without a warrant. The purpose of the search is to protect her safety and make sure the person she is arresting cannot destroy any evidence. This means the officer may search the person she is arresting and the area right around him. Without a search warrant, the officer cannot arrest someone and then search his entire house. That would violate the privacy the Fourth Amendment is supposed to protect.

Sometimes police officers see suspicious activity without seeing a crime. For example, an officer might see three men pacing back and forth outside a store like they are going to rob it. That is what happened in Terry v. Ohio (1968), in which the Supreme Court created the "stop and frisk" rule. This rule allows police officers to stop suspicious persons, frisk them to make sure they have no weapons, and ask a few questions. As long as the police have a good reason to be suspicious, they do not need a warrant or probable cause. If the stop and frisk reveals no wrongdoing, the police must quickly let the person go without making an arrest or conducting a full search of the person's clothes or surroundings.

Automobiles

The invention and widespread use of automobiles in the early 1900s presented a challenge to the Fourth Amendment. People expect to have privacy in their cars. Cars, however, are easy to move. If police officers had to get warrants to search cars, drivers could leave the state to avoid being caught.

In Carroll v. United States (1925), the U.S. Supreme Court created an automobile exception to the Fourth Amendment's warrant requirement. Under Carroll, if a police officer has probable cause to search a car, he need not get a search warrant. For example, if a police officer sees a car speeding away from a bank that was just robbed, he may stop the car and search it for stolen money without getting a search warrant. The automobile exception even allows the officer to search bags and other closed compartments in the car if he has probable cause to believe he will find evidence of a crime in them.

When police stop a car for a traffic violation, they sometimes see evidence of crimes in plain view in the car. In Whren v. United States (1996), police officers saw crack cocaine on the seat of a car they had stopped for making a turn without a signal. Even though the officers did not have probable cause to believe there was a drug violation when they stopped the car, they were allowed to seize the drugs that were in plain view.

There is one automobile exception that allows police to search a car without a warrant or probable cause. Police is some states use checkpoints to search for drunk drivers. At the checkpoint they stop cars and interview drivers, even if they have no reason to believe the driver is drunk. In Michigan v. Sitz (1990), the Supreme Court said police may use checkpoints to catch drunk drivers. The Court said checkpoint stops are a small invasion of privacy with the potential to do a lot of good by stopping drunk drivers.

Electronic Searches

The Fourth Amendment mentions people and their "houses, papers, and effects." Until 1967, the Supreme Court said the Fourth Amendment did not apply to electronic searches, such as wiretapping to hear telephone conversations. That changed in Katz v. United States (1967). In Katz, the federal government learned about illegal gambling by listening to telephone conversations in a public phone booth through a device attached outside the booth. The defendant challenged his conviction, saying the government violated the Fourth Amendment by "searching" his telephone conversations without a warrant and probable cause.

The U.S. Supreme Court agreed. It said the Fourth Amendment was not designed to protect just houses and papers. It was written to protect privacy. When a person has a telephone conversation in a closed booth, he expects it to be private. The federal government cannot invade that privacy without a warrant and probable cause.

Exclusionary Rule

The reason law enforcement officials conduct searches and seizures is to arrest criminals and find evidence to convict them in court. If an officer finds evidence by searching without a warrant, he suffers the penalty of the exclusionary rule. This rule prevents prosecutors from using evidence seized without a valid search warrant. Sometimes that means the prosecutor does not have enough evidence to convict a person who really is guilty. When that happens, the criminal is set free.

Many people have criticized the exclusionary rule. They say criminals should not be allowed to go free just because police officers make an error. The Supreme Court, however, says the exclusionary rule is necessary to make sure the government follows the law. As the Court said in Mapp v. Ohio (1961), "Nothing can destroy a government more quickly than its failure to observe its own laws."

Most rules, of course, have an exception, and the exclusionary rule is no different. The good faith exception applies when law enforcement uses a warrant that turns out to be invalid. A warrant is invalid, for example, if the judge issues it without probable cause. In United States v. Leon (1984), the Supreme Court said if law enforcement believes in good faith that a warrant is valid, prosecutors can use the evidence to convict the defendant, even if the warrant was not valid. This means criminals will not go free just because a judge or magistrate makes an error when issuing a warrant.