The Fourth Amendment and the Home By Laura Zajac

“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.” -- United States Constitution, Amendment IV.

The Home The Supreme Court has interpreted the 4 th amend. to give the home the HIGHEST level of protection from the government – This is based on citizens’ privacy interests – Common law: a man’s home is his castle…

What is “reasonable”? REASONABLE=WARRANT – In most (but not all) cases the REASONABLE search of a home requires a WARRANT Magistrates issue warrants when police provide facts constituting PROBABLE CAUSE – “the facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”

WARRANT LIMITATIONS A WARRANT TO SEARCH FOR CONTRABAND INCLUDES: – the limited authority to DETAIN ALL OCCUPANTS OF THE PREMISES while the warrant is executed. Once the articles described in the warrant are FOUND, the search is OVER. Warrants must be PARTICULAR: – As to the objects being searched for – As to the places the search is allowed Police can only look in places where the items could potentially be located

EXIGENT CIRCUMSTANCES What are the EXIGENT CIRCUMSTANCES that dispense with the warrant requirement? 1) HOT PURSUIT OF A FELON 2) Probable cause to believe that if the police don’t enter immediately: – EVIDENCE will be DESTROYED – SUSPECT will ESCAPE – HARM will result to POLICE/OTHERS, either inside or outside the dwelling **The gravity of the crime and the likelihood the suspect is armed are also considered.

CONSENT If the police obtain consent to search a home, they do not need a warrant. – Consent searches are reasonable under the 4 th Amendment CONSENT must be VOLUNTARY – Voluntariness is based on a reasonable person standard – No police coercion can be involved – Police do NOT have to inform resident of right to refuse them entry – Totality of the circumstances are looked at

PLAIN VIEW DOCTRINE PLAIN VIEW DOCTRINE IS AN EXCEPTION TO THE WARRANT REQUIREMENT. Police may seize an item without a warrant if: – The officer observes the item from a lawful vantage point; – The officer has a right of physical access to the object; AND – It is immediately apparent upon observation that it is seizable (contraband, evidence of crime, etc.) **NOT A REQUIRMENT=INADVERTANCE. Police can look for items “on purpose” when they have a lawful warrant for another object.

KNOCK AND ANNOUNCE The Fourth Amendment protection for homes requires that police KNOCK and ANNOUNCE their presence before entering a home Rule applies even if the police have search or arrest warrants==part of “reasonableness”. To dispense with the rule, however, the police only need reasonable suspicion (less than probable cause) that an exception exists.