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Our Constitutional Rights

Whether a person is arrested or merely under investigation, the United States Constitution affords many protections under the Fourth, Fifth, Sixth and Fourteenth Amendments. These protections are our most basic rights.

Fourth Amendment

The Fourth Amendment guarantees “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.’’

Search and Seizure

Every person in the United States has the constitutional right to be free from unreasonable searches and seizures of their person or property by the government. This right protects not only what a person may have on, or in, their body, but also their vehicle, luggage, residence, hotel room, curtilage (area directly around the home), papers and other effects. This right is not unlimited, however, as there are many places and things that are not protected from government searches and seizures. These include bank records, public navigable air space, garbage, odors and open fields. The United States Supreme Court has fashioned a test to determine when a search or seizure by the government is unreasonable.

The Court has ruled that in order for a search or seizure to be unreasonable, a defendant must show that: 1. there is an actual or subjective expectation of privacy in the area searched or seized; and 2. the expectation of privacy is one that society recognizes as reasonable. With those factors in mind, the court has found the aforementioned areas and items to be those which are protected, and the others to be ones which are not protected from unreasonable searches and seizures. The court has also held that a search is presumptively unreasonable when the government’s use of a device that is not in public use is utilized to explore the details of a home which produces information that would not have been known without any physical intrusion. An example of this would be law enforcement using an infrared device from a public street to see the amount of heat being emitted from a home as evidence of marijuana cultivation being conducted inside. The Supreme Court has also found that a dog sniff of a person or an item which is in a public space is not a search within the meaning of the Constitution. However, the court has also found that a dog sniff within the curtilage of a residence is a search, and is unconstitutional absent a warrant to do so.


An individual’s personal privacy rights must be invaded by a government agent in order for that person to challenge the search or seizure. This is called “standing.” Generally, the following persons have such standing to challenge a search or seizure:

  1. The owner of the premises or items searched;
  2. A renter or lessee of the place or items searched; and
  3. Any overnight guests having access to areas searched (common areas).

Also, and generally, the following persons do not have standing to challenge a government’s search:

  1. An occupant of a premises of another being used for commercial purposes. For example, one possessing drugs at the home of another when it is raided by law enforcement may not have standing to challenge the search because they may not have a reasonable expectation of privacy in the home that was searched.
  2. Also, and generally, passengers in an automobile who do not own it may also not be able to challenge its search merely because their property is seized.

Search and Seizure with a Warrant

In order for protected areas to be searched by law enforcement, they must have a warrant issued by a “neutral and detached Magistrate”, supported by “probable cause” to believe that an offense has been, or is going to be, committed with a detailed particularization of the areas and items to be searched and/or seized. It is important for one to note that a judicial officer ceases to be “detached” when he or she shows bias in favor of the prosecution. The “probable cause” that must be shown by law enforcement in order to secure a warrant is proof of a fair probability that contraband or evidence of a crime will be found in the area to be searched and/or the items seized.

Significantly, anonymous tips from informants have been approved by the Supreme Court as a basis for probable cause when the informant has: 1. a basis of knowledge; and 2. A history of reliability and honesty. The court has also held, however, that where one of the aforementioned items of proof is lacking, law enforcement may corroborate the information by other means. Thus, the requirement is not irrelevant as law enforcement may “fill in the gaps” with their own investigation.

In addition, a warrant to search and/or seize must also particularize the place to be searched and the items to be seized. However, the Supreme Court has held that a defective warrant can be protected by the “good faith exception.” In other words, the actions of law enforcement officers which may be unconstitutional may nevertheless survive attack if law enforcement officers depend on the fact that the warrant was issued by a judge in good faith. Similarly, the court has found four instances where law enforcement may not rely on the good faith exception and the search and/or seizure that was conducted remains unconstitutional.

Some of these instances are as follow:

  • Where the search warrant affidavit used by law enforcement was so egregiously vague that no officer could have relied on it;
  • Where the warrant is so deficient in stating the particulars of the reason for the search that no officer could presume it to be true;
  • Where the search warrant affidavit relied upon by the judge contained knowing and reckless falsehoods, that, if true, were necessary to a probable cause finding; and
  • Where the judge favored the prosecution.

Proper Execution of Warrants (Knock and Announce):

Consistent with the Fourth Amendment, the Supreme Court requires law enforcement to comply with each of the terms and limitations set forth within the warrant when executing it. Generally, law enforcement must knock and announce their presence before executing a warrant unless the officers reasonably believe that doing so would be futile, dangerous, or would inhibit their investigation. According to the Supreme Court, law enforcement may rely solely on the information available to it at the moment the warrant is executed with respect to the “knock and announce” requirement. Regardless, some warrants may even be issued where law enforcement does not have to knock and announce their presence at all.

Warrantless Searches and Seizures:

Consistent with the Fourth Amendment, the Supreme Court has approved eight occurrences where law enforcement may conduct a warrantless search and/or seizure based upon probable cause. They are as follows:

A. Exigent Circumstances

  1. Law enforcement may act without a warrant to preserve short-lived evidence. An example of such evidence would be human tissue remains that may be under a suspect’s fingernails;
  2. Hot Pursuit of a Fleeing Felon – Law enforcement may enter the home of a suspect or third party to apprehend a fleeing felon. In addition, any evidence discovered during the pursuit in “plain view” is admissible in court; and
  3. Emergency Aid Exception – Law enforcement may enter a residence when there is a reasonably objective basis for believing that someone is in need of emergency services to address or prevent injury. Again, any evidence discovered in “plain view” is admissible in court.

B. Search Incident to Arrest

Consistent with the Fourth Amendment, the Supreme Court also allows law enforcement to search a person who has been lawfully arrested. The reasoning behind this rule is that it is needed to maintain officer safety and preserve potential evidence. The search must also be at the same time and place as the arrest. The areas which may be searched are the person’s body, clothing, and any containers in the arrestee’s immediate control without regard to the arrest that was made. Searching a vehicle’s interior cabin incident to arrest is constitutional, but not the trunk unless there is probable cause to believe that there is evidence of a crime present therein.

In 2008, the court addressed the issue of when a vehicle may be searched based on whether an arrestee has been secured (placed in handcuffs), or an arrestee who has not been secured (not placed in handcuffs). The court has also ruled that, absent probable cause to believe that another crime has been committed, once an officer has secured an arrestee, then the officer can only search the arrestee’s vehicle if the officer believes there is further evidence to be found in connection to the arrest that was made. For example, if a law enforcement officer places one under arrest for marijuana, the officer may also have probable cause to believe that there may be more marijuana present in the vehicle or other narcotics and may search any container in the car where those narcotics may be concealed. On the contrary, if one is arrested for driving with a suspended driver’s license, there would not be probable cause to believe that there is any further evidence of the crime present within the car, and thus, law enforcement could not conduct a further search without probable cause that another crime has been committed. In the event of an arrestee who has not been secured (not placed in handcuffs), a law enforcement officer may conduct a full search based upon probable cause.

C. Consent

Consent to a search and/or seizure is another exception to the warrant requirement that has been approved by the Supreme Court. This exception is not unlimited, however, as the suspect must have made the decision to allow law enforcement to search and/or seize in a voluntary and intelligent manner. Of course, law enforcement is not obligated to inform anyone that they can refuse consent and consent extends to all areas that the consent is granted. There is also an important exception to this. The court has held it to be constitutional if a person portrays that they have the apparent authority to consent and grant authority to law enforcement to conduct a search if law enforcement reasonably believes their authority to be actual in nature. For example, where law enforcement asks to search an office and is given consent by the office clerk, law enforcement still has permission to conduct the search even though the office did not “belong” to the clerk. This is because law enforcement relied on the clerk’s “apparent authority” to do the searching. In addition, the court has held that if there are co-tenants, and both parties are present on the scene and a law enforcement officer wants to search, the objecting party trumps the party who would allow the search. However, the court has recently ruled that if the objecting tenant were to leave the premises, and law enforcement returns, the co-tenant can re-grant authority to search and anything incriminating that turns up in the search is admissible.

D. Automobile Exception

The Supreme Court has held that automobiles are exempt from the warrant requirement due to their readiness in mobility and a lesser expectation of privacy. However, law enforcement must still have probable cause to believe that contraband or evidence of a crime will be found in the vehicle. If law enforcement can articulate sufficient probable cause to search, they can search the entire vehicle and open any containers or packages that may reasonably contain the items sought. The item that law enforcement desires to seize must be in something that may reasonably contain the item. For example, if law enforcement is looking for narcotics, they may then search anywhere in the vehicle because narcotics may be hidden anywhere in the vehicle. However, if law enforcement is looking for a rifle, they may not search a glove compartment because a rifle cannot be kept in a glove compartment. Similarly, the court has held that if one is pulled over for speeding, and law enforcement runs the vehicle’s license plate and sees that it is linked to drug trafficking, then it may, in part, provide a proper basis for law enforcement to search because it may add to the probable cause to do so. However, if the vehicle is searched, and then only after the search linked to drug trafficking, the search is improper and the evidence obtained is inadmissible.

E. Plain View

The Supreme Court has held that items law enforcement may see in “plain view,” without a warrant may be admissible in court if their presence in the area where the items were viewed was lawful. Evidence obtained by law enforcement in plain view must meet the following standard:

  1. Lawful access to the place from where the item(s) can be seen;
  2. Lawful access to the item(s); and
  3. The criminality of the item(s) must be immediately apparent

F. Inventory Searches

The Supreme Court has held that warrantless inventory searches may also be conducted when law enforcement is booking one into jail or when they are impounding vehicles. However, the court has also held that certain criteria must be satisfied when conducting these searches.

The criterion is as follows:

  1. Any regulations governing the search must be reasonable;
  2. The search itself must comply with those regulations; and
  3. The search must be made in good faith

The Court has ruled that because an officer’s subjective intent matters with inventory searches, they must act in good faith. As such, a law enforcement officer may not use an inventory search as a means to search one’s person or belongings with the sole intent of obtaining incriminating evidence.

G. Terry Stop and Frisk

The Supreme Court has articulated a lower standard for conducting criminal investigations that allows law enforcement, without probable cause, to briefly detain and/or seize one for the purpose of confirming or dispelling the suspicion of criminal activity. The court has held these types of stops require law enforcement to have specific and articulable facts that indicate criminal activity is present. The court has also ruled that one is seized within the meaning of the Constitution when, based on the totality of the circumstances, a reasonable person would not feel free to leave or decline an officer’s request to answer questions. Thus, a seizure occurs when one submits to, or is subdued by, law enforcement. During these criminal investigations, law enforcement may conduct a pat down frisk of one’s person if law enforcement suspects a weapon is present and the person may be dangerous. The standard for these frisks is that law enforcement must have “specific and articulable facts” that suggest that the suspect is armed and dangerous. These pat downs, which are known as Terry Frisk’s, are a pat down of the outer clothing and body that is justified by a belief that the suspect is armed and dangerous. However, law enforcement cannot manipulate the object to see if it is contraband if it is not a weapon. In addition, if during a traffic stop law enforcement believes the suspect is dangerous, the officer can search the passenger cabin where a weapon could be placed or hidden. The court has also held that during a traffic stop, the driver and passengers are seized, both driver and passengers can be ordered out of car, and dog sniffs are permitted provided that the sniff does not prolong the stop unreasonably.

H. Special Needs

The Supreme Court has approved warrantless and suspiciousless drug tests for railroad employees following an impact, custom agents in the course of duty, and public school children who engage in any extracurricular activity. Warrantless searches of the person and effects of public school children are permissible in order to investigate violations of school rules. The search must be reasonable at its inception and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. The special needs exception does not apply to law enforcement programs if the primary purpose is to gather criminal evidence for general use.

Exclusionary Rule:

Evidence obtained unconstitutionally under Supreme Court precedent is excluded from the prosecutor’s case in chief. However, it can be introduced on cross-examination for impeachment purposes. Thus, for evidence to be excluded due to the conduct of law enforcement, the conduct must have been deliberate, reckless, or grossly negligent. The court has also held that this rule does not apply to evidence that is erroneously obtained when executing a search warrant providing the officer’s mistake was reasonable. However, the court has adhered to the rule that evidence which is obtained by law enforcement from a prior unconstitutional event is not admissible. This is also known as the Fruit of the Poisonous Tree Doctrine.


When someone is taken into custody for prosecution or interrogation and identification, there must be probable cause by law enforcement to do so. The standard set out by the Supreme Court is that law enforcement must have sufficient and trustworthy facts and information (known at the time) that would cause a person of reasonable caution to believe that there is a fair probability that: 1. a crime was committed, is being committed, or will be committed; and 2. by the person to be arrested. Generally, all offenses are arrestable (except civil traffic offenses which must be authorized by general law) and while law enforcement does not need a warrant to arrest one in a public place, they do need one to arrest one at their home. This adheres to the philosophy that one’s home is their castle. Also, if law enforcement wishes to execute an arrest warrant on one who is not residing in their primary residence, they also need a search warrant to enter the home of the third party to execute the arrest warrant.

Fifth Amendment

“No person shall be…compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”


The Constitution requires that any confession to a crime must comply with the Fifth and Fourteenth Amendments due process clauses. The Supreme Court has therefore determined that any confession must not be the result of law enforcement coercion that overbears the suspect into a confession. Any type of confession that is a product of coercive actions by law enforcement is inadmissible in court.

Miranda Rights:

Anyone who is placed in custody, or who is being interrogated by law enforcement, must first be advised of their Constitutional Rights. Usually referred to as “Miranda Rights” these rights are not unlimited. As such, in order for Miranda Rights to apply, one must first be in custody, or under interrogation. The Supreme Court has held that custody is when a reasonable person would have felt that they were not free to end the interrogation and the environment in which the interrogation took place was inherently coercive and law enforcement dominated. Interrogation is defined as any conduct that law enforcement knows or should know was intended to elicit an incriminating response. Thus, any suspect who is in custody or under interrogation must be advised of their Miranda Rights by law enforcement. Failure by law enforcement to advise the suspect of their rights may deem any statement given by a suspect to law enforcement inadmissible in court.

Of course, these rights (like any others) may be waived (i.e. given up) if the suspect wishes to do so, but that waiver is only valid if the suspect knowingly and intelligently waives those rights in a voluntarily manner. The Supreme Court defines “knowingly and intelligently” as being when the suspect knows the nature of the rights and consequences of abandoning them. Voluntariness is a waiver that is free from police coercion. A suspect is typically asked to sign a card when executing a waiver of these rights.

If one invokes their right to silence, it must be done so unambiguously, and after doing so, law enforcement must scrupulously honor that right once it is invoked. Similarly, if one invokes their right to counsel, it must be done in a way that is sufficiently clear so that any reasonable officer in the same situation would understand the request to be a request for counsel. Once a suspect invokes this right, all interrogation must cease unless it is initiated by the suspect.

Furthermore, the Supreme Court has determined that, unlike the Sixth Amendment, the Fifth Amendment’s right to counsel is not offense specific, and as such, once a suspect requests counsel under Miranda, interrogation is prohibited as to all topics outside the presence of the suspect’s attorney during custody and it lasts for 14 days after a defendant’s release from custody.

Exclusionary Rules Under Miranda:

The Supreme Court has held that incriminating statements gained through a Miranda violation cannot be used in a prosecutor’s case in chief. However, failure to give a suspect Miranda does not require the suppression of the physical fruits (non-testimonial evidence) of incriminating statements provided the statements are voluntary.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”

The Sixth Amendment’s right to counsel is an express constitutional guarantee. However, unlike the Fifth Amendment, it does not become effective until the defendant is formally charged, and not merely upon arrest. Only then does it apply to all critical stages of the prosecution which includes arraignment, probable cause hearings, and any interrogation after charges are filed. The right to counsel is also offense specific and only applies to charges filed against you and not for uncharged criminal activity. Incriminating statements obtained from a defendant who has been formally charged and who has counsel, and that were made without knowingly, voluntarily and intelligently waiving the right to counsel, are inadmissible.

Fourteenth Amendment

No…state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment guarantees due process of law and equal protection of the laws to any person within the jurisdiction of the various states. As such, the Supreme Court has used the Fourteenth Amendment’s due process clause on numerous occasions to apply the original Bill of Rights to the states. Thus, the substantive rights of the First, Second, Fourth, Fifth (Except for Grand Jury requirement), Sixth and Eighth (Cruel and Unusual Punishment Clause) Amendments apply to all the citizens of the states.

Second Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The Second Amendment guarantees the right of the citizens to keep and bear arms. However, it was not until 2010, in ­McDonald v. Chicago, that the Supreme Court finally incorporated the Second Amendment through the Fourteenth Amendment so that is applies to the states as a fundamental right. The Court held that the due process clause in the Fourteenth Amendment incorporates the Second Amendment and that gun ownership for self-defense is a fundamental right that cannot be overly restricted by the local and state governments. However, the court reaffirmed that certain firearms restrictions are permissible. Such restrictions include the possession of firearms by convicted felons or the mentally ill and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

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