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posted on 7/11/16

When the United States federal government first sat down to business in the spring of 1789, one of the first items on the agenda was a slate of proposed constitutional amendments that were designed to ease the fears of nervous states’ rights advocates that the new government was nothing but a power grab bent on eroding civil liberties.

One of these proposals eventually became the Fourth Amendment. In colonial times, the British often used “general warrants,” or blank search warrants, as justification for any searches and seizures that officials deemed necessary. So, the Fourth Amendment states that warrants must be based on probable cause and specifically state the nature of the search.

In later years, courts developed the exclusionary rule which, at least in most cases, excludes evidence that was seized without a proper warrant from any subsequent criminal proceeding. For most of the Republic’s history, the Fourth Amendment only applied to federal cases. But in a string of decisions considered groundbreaking at the time, the United States Supreme Court ruled that the Fourteenth Amendment, which declares that no state may deprive a person of life, liberty, or property without due process of law, means that federal constitutional rights apply in state court, as well.

Warrant Requirements

The phrase “right to privacy” is not found in the Constitution, but this principle is embedded in the document. Therefore, the search warrant requirement is in place because individual privacy must be respected unless there is a good reason to violate this protection. To overcome what is effectively a presumption in favor of privacy and against searches, the court uses a two-part inquiry:

  • Subjective Privacy Expectation: Did the person expect that the item would remain private when it was placed in a bag or shoebox or under a car seat or wherever?
  • Reasonable Privacy Expectation: Would a reasonable third party have the same or similar attitude?

If the defendant has a constitutionally-protected privacy interest, the peace officer must obtain a warrant that is based on probable cause. Typically, probable cause can be based on information furnished by a reliable third party or facts that the officer personally knows that give rise to a presumption of a specific type of criminal activity.

Warrant Exceptions

At times, there have been so many search warrant exceptions that have been so broad they effectively swallowed the warrant requirement. Some of the major exceptions include:

  • Good Faith Reliance: Strictly speaking, good faith is not an exception but rather an allowance. If the officers obtain a warrant that is later declared invalid, and they relied on it in good faith, the evidence obtained may be admissible.
  • Search Incident to Arrest: After a lawful arrest, peace officers may search the arrestee’s “wingspan” for contraband. Blood draws fall outside the purview of a search incident to arrest.
  • Plain View: For example, if the search warrant gives peace officer the right to search the living room for drugs, they can seize a handgun they find on the coffee table.
  • Consent: Under certain circumstances, a non-owner, like a roommate or renter, can give consent to search property.

Other prominent exceptions include stop-and-frisk detention, the automobile exception, and hot pursuit exception.

Rely on Experienced Attorneys

Peace officers do not always need valid warrants to seize evidence. For a confidential consultation with an experienced criminal defense attorney in Schaumburg, contact Glasgow & Olsson. Convenient payment plans are available.