San Antonio Illegal Search and Seizure Defense Attorney.

Simply stated, the Fourth Amendment is a hard check on police power. This means police need a good reason before they can arrest someone or look through his or her things. If police do not have a good reason to do this, then they cannot use the evidence they found against the victim of the bad search or seizure.

This sounds simple enough. But the rule is not always easy to figure out. One major reason is the facts of the case often determine if police acted reasonably or broke the law. In addition, the judge in the case also matters. Some judges give police lots of leeway to do their jobs. Yet, other judges keep police on a short leash. This is similar to an umpire in a baseball game. Some of them call the strike zone narrowly, while others give pitchers a wide strike zone.

Nevertheless, there are some ground rules that police must play by. And these rules will help us figure out what happens when police go too far. Most importantly, we will see how the Fourth Amendment can be used to defend against gun, drug, or alien-smuggling cases. This–in a nutshell–will be the 4th Amendment simplified.

But first, we need to define a few key terms that provide context to the Fourth Amendment.

Important Fourth Amendment Definitions.

1.Probable Cause to Arrest.Exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed, or was in the process of committing, an offense. See United States v. Zavala, 541 F.3d 562, 575 (5th Cir. 2008).
2.Probable Cause to Search.A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present. See Florida v. Harris, 568 U.S. 237, 243 (2013).
3.Exigent Circumstances.This is an exception to the warrant requirement. In some cases, police do not need a search warrant. The exception applies when "the exigencies of the situation' make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v. King, 563 U.S. 452, 460 (2011).
4.Plain View Doctrine.Allows police to seize items without a warrant if: (1) the officer lawfully entered the area where the item(s) could be plainfly viewed; (2) the incriminating nature of the item(s) was immediately apparent; and (3) the officers had a lawful right of access to the items. United States v. Conlan, 786 F.3d 380, 388 (5th Cir. 2015).

Further, the incriminating nature of an item is immediately apparent if the officers have probable cause to believe that the item is either evidence of a crime or contraband. Id. at 389.
5.The Exclusionary Rule.It is a judge created rule. It was adopted by the courts to effectuate the Fourth Amendment.

Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. This prohibition applies as well to the fruits of the illegally seized evidence. United States v. Calandra, 414 U.S. 338, 347 (1974).
6.Terry Stops and Frisks.An exception to the warrant requirement.

If a police officer can point to specific, articulable facts that lead him to reasonably suspect that criminal activity may be afoot, he may briefly detain an individual to investigate.

In addition, if the officer reasonably believes that the individual is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons. Terry v. Ohio, 392 U.S. 1, 24 (1968).
7.Consent Search.It is an exception to the warrant requirement.

If a person gives police permission to search, then police can search without either a warrant or probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
8.Fruit of the Poisonous Tree Doctrine.The exclusionary rule prohibits the government from introducing at trial all evidence that is derivative of an illegal search. This illegally obtained evidence is also known as "fruit of the poisonous tree. United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001).
9.The Attenuation Doctrine.This doctrine is an exception to the Exclusionary Rule. It evaluates the causal link between the illegal search or seizure and the discovery of evidence.

Further, evidence may be sufficiently attenuated (weakened or reduced in value) from the Fourth Amendment violation so that is is now admissible against the defendant. United States v. Mendez, 885 F.3d 899, 909 (5th Cir. 2018).

The key question is whether the evidence has been come at by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged or cleansed of the primary taint. Brown v. Illinois, 422 U.S. 590, 599 (1975).
10.Fourth Amendment Standing Requirement.The concept of standing in Fourth Amendment cases can be useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search. Byrd v. United States, 138 S.Ct. 1518, 1530 (2018). In other words, police have to violate your rights, not somebody else's.
11.The Inevitable-Discovery Exception.The Inevitable-Discovery Doctrine is an exception to the Exclusionary Rule.

For this exception to apply, the government must prove by a preponderance of the evidence that: (1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct; and (2) the government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation. See United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991).
12.Independent Source Exception.This is another exception to the Exclusionary Rule.

It is closely related to the Inevitable-discovery exception.

It applies if: (1) police would still have sought a warrant in the absence of the illegal search; and (2) the warrant would still have been issued (i.e., that there would still have been probable cause to support the warrant) if the supporting affidavit had not contained information stemming from the illegal search. United States v. Runyan, 290 F.3d 223, 235 (5th Cir. 2002).
13.Search.A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).
14.Seizure.A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

What does the Fourth Amendment say?

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.

Fourth Amendment.

Unlawful Search and Seizure Amendment.

At its core, the text of the Fourth Amendment gives people the right to be left alone. As a result, it places limits on how and when police can search or seize a person, place, or thing.

As Professor Anthony G. Amsterdam stated:

The words “searches and seizures” and the words “persons, houses, papers, and effects” are terms of limitation. Law enforcement practices are not required by the fourth amendment to be reasonable unless they are “searches” or “seizures.” Similarly, “searches” and “seizures” are not regulated by the fourth amendment except insofar as they bear the requisite relationship to “persons, houses, papers, and effects.”

Anthony G. Amsterdam, Perspectives On The Fourth Amendment, 58 Minn. L. Rev. 349, 356 (1974).

Accordingly, it does not apply to searches or seizures done by a private individual. Also, it only applies if police conduct meets the definition of a search or seizure listed above. Finally, the search or seizure must target persons, houses, papers, and effects.

4th Amendment Simplified.

The text of the Fourth Amendment is overwhelming. It’s also a little confusing. The more you read it, the less it makes sense. But here are the key points:

  1. It places a limit on what police can do when they search or arrest a person. And it also places limits on when and how they can search and seize property or things.
  2. The amendment protects people from government overreach. For example, if police want to search your home or cell phone, then they need two things–probable cause and a warrant.
  3. Further, the warrant must be specific. Police must say where they want to look. And they must say who they want to arrest and what they want to take.
  4. Finally, the Fourth Amendment is a personal right. It belongs to each person in the United States. In other words, it belongs to both citizens and non-citizens alike.

Nonetheless, the amendment does not say what happens when police illegally search or seize a person, place, or thing. To answer that question, we need to talk about the Exclusionary Rule.

What is the exclusionary rule?

The Exclusionary Rule stops the government from using evidence they got from an illegal search or seizure in a criminal case against the accused. In particular, it bars the evidence obtained as a direct result of an illegal search or seizure. It also stops the government from using secondary evidence–or the “fruits”–that flow naturally from the bad search or seizure.

However, the Exclusionary Rule covers two types of evidence. It extends to the primary and derivative evidence that is connected to the bad search or seizure. Judges call derivative evidence fruit of the poisonous tree. Critically, if there is a break between the the bad search or seizure and the evidence, then the Exclusionary Rule no longer applies.

Put differently, the Exclusionary Rule is a penalty against the government for conducting an illegal search or seizure. It kicks out the tainted evidence at trial against the defendant if police violated his Fourth Amendment rights. If the judge agrees that police violated a defendant’s rights, then the government cannot use this evidence at trial.

However, judges do not want guilty people to go free. Yet, they also do not want police to profit from their bad behavior. Consequently, the rule requires the judge to balance the social cost of allowing a guilty person to go free versus preventing police from doing this again. This conflict explains why it is so hard to predict what a judge will do.

Equally important, the Exclusionary Rule has three safety valves for the government. If the government meets one of these three exceptions, then it can use the evidence at trial. This is true even if police illegally searched or seized the person or his property.

What are the three exceptions to the Exclusionary Rule?

The Supreme Court says there are three exceptions to this rule:

  1. Attenuation of the Taint: It applies when there is a weak link between the illegal search or seizure and the illegally secured evidence. Courts use the following three factors to see if there is a break between the bad search or seizure and the evidence: (A) time gap between the bad search or seizure and the challenged evidence; (B) intervening circumstances; and (C) the purpose or flagrancy of the police misconduct.
  2. Inevitable Discovery: The government must show two things. First, there is a reasonable chance police would have found the dirty evidence in a clean way. Second, police were looking at a strong but different line of investigation when the bad search or seizure happened.
  3. Independent Source: Allows the government to use evidence that police find that is completely independent of any illegal search or seizure.

In sum, these exceptions give police a second bite at the apple. They allow the government to use dirty evidence against the victim of an illegal search or seizure. Even so, the government must meet the requirements for each exception. If they do not, then they cannot use the evidence at trial.

Do police always need a warrant before they can search or seize a person?

No. The case law gives police lots of room to operate. Accordingly, they created several exceptions that allow police to search or seize a person, place, or thing without a warrant. Unfortunately, there are too many to list and talk about in one post.

Despite this fact, there are two exceptions that police frequently use to stop, search, or arrest people for drug, gun, and alien-smuggling crimes. A careful look at these exceptions will show how they work. Likewise, they will show how the Fourth Amendment protects people from police abuse.

1. Terry Stops.

Stop-and-Frisk allows police to briefly detain a person and search him for weapons. However, this procedure has two conditions. First, police need reasonable suspicion the person is committing or about to commit a crime. Second, Terry frisks allow police to pat down a person for weapons. But the pat down is only allowed on the condition that the officer has a reason to believe the person is armed.

Interestingly, stop-and-frisk is both a search and seizure. But strikingly, police can do stop-and-frisk without a warrant. The reason courts excuse the warrant requirement in these types of cases is simple. It allows police to act quickly. In other words, there is no time to get a warrant.

Yet, police must still respect the Fourth Amendment. This means the police conduct must be reasonable. To be a reasonable search and seizure, stop and frisk requires two things:

  1. Police had a good reason to stop or detain the person in the first place; and
  2. The investigation was logically related in scope to the reason for the stop.

As we will see below in our examples, Terry stops give police lots of discretion to stop people for even small traffic violations. From there, they can escalate the stop into a felony arrest.

However, they have to follow these rules. If they don’t, or if they go too far, then the person can kick out the evidence using a motion to suppress. To see how this works, we need to consider a few examples.

What are examples of illegal searches and seizures?

1. Extra long traffic stops.

If a police officer sees you running a red light, changing lanes without a signal, or speeding, then he can pull you over. In fact, police have stopped most of us at one point or another for a traffic crime.

But what can police do during a traffic stop? And how long can they hold us? The Fourth Amendment answers these questions.

During a traffic stop, police can do the following:

  1. Check your driver’s license;
  2. Check for warrants;
  3. Confirm your car registration or car rental papers;
  4. Run a computer check on your license and insurance papers; and
  5. Ask the driver where he or she is going to or coming from.

These are all normal parts of a traffic stop. And this takes time. But the length of time in most traffic stops is short. Nevertheless, once the officer completes these tasks, then he has to let you go.

In contrast, he can hold you longer if–during the stop–he finds proof that you are breaking another law. But again, if he does not, then he has to let you go. If he extends the traffic stop without a good reason, then any evidence they find later cannot be used against you at trial.

More importantly, police use routine traffic stops to investigate drivers for more serious crimes. This includes looking for drugs, guns, and alien smuggling crimes. As a result, police often overreach.

They hold drivers after the traffic stop is complete to look for these types of crimes. This sometimes includes bringing a K-9 unit to sniff the car for drugs. But if this happens after the traffic stop is complete, then it is a bad search.

2. Cell phone searches without a warrant.

Police must get a warrant before they search your cell phone. This is true even when police arrest a person for a drug crime. The exception is if you consent to the search of your cell phone.

Further, if police search your phone without a warrant or your consent, then this is an illegal search. This allows the person to file a motion to suppress any evidence found from the warrantless search. And it will be up to the government to show why the search is ok.

Of major interest, cell phone searches are a big deal. They contain tons of our personal information. This includes text messages, photos, and videos. It is personal information that most people want to keep private. And it is this privacy interest the Fourth Amendment protects.

3. Some DWI Blood draws.

In many DWI and DUI cases, police must get a warrant before they take your blood. These are routine cases where there is no accident and no one is hurt or killed. In these circumstances, police must get a warrant before they take your blood.

But if someone is hurt or killed in a DWI case, then police do not need a warrant. They can rely on the exigent circumstances exception. In short, if police arrested you for DWI and took your blood without a warrant, you need to check why police did this. If they did not have a good excuse–such as exigent circumstances–then it is a bad search.

4. No consent or bad consent searches.

Police normally need probable cause, a warrant, or both to search a person, place, or thing. But consent searches are an exception to this rule. The person who is a target of this search gives police permission to look. Above all, giving police permission to search carries important consequences.

In effect, the person is telling the officer–“don’t worry about probable cause or getting a warrant–you can look as you please.” This is dangerous. And it can land you in jail.

This is why police officers ask drivers during routine traffic stops the following question: “Can I look in your car?” In these cases, the officer usually does not have probable cause to search the car. But if you say yes, then the officer is free to look everywhere. He can look inside the car, in the engine compartment, and the trunk. Worse yet, if he find drugs or evidence of a crime, he can use it against you at trial.

However, if the driver or person gives police consent to search while police have him at gunpoint, handcuffed, or surrounded by multiple police officers, then his consent is probably not valid. If this is the case, you should file a motion to suppress the consent search.

Similarly, a person can place a limit on consent. He can tell the officer, “you can look here, but not there.” This is called limited consent. And if the officer goes beyond this limit, then the search is also bad. For example, in a routine traffic stop, a driver can tell the officer: you can “search my luggage.” This statement places a limit on where the officer can search. Consequently, if the officer searches the car and finds drugs, then this is a bad search too.

Why is the Fourth Amendment Important?

The simple answer is it keeps the Government in check. Without this right, police could search us for any reason or no reason at all. More importantly, this could lead to serious abuse.

For example, without this right, police could simply stop you on the street and search you. They could also come into your house and search it for evidence of a crime. This includes looking in your cellphone or computer and checking your private Facebook and Instagram messages. And police could do this without any proof you did anything wrong. In short, it would lead to a violation of your right to privacy.

The good news is that the Fourth Amendment stops this from happening. It places limits on what the government can do. Or more precisely, it requires police to have a good reason before they can search or seize a person, place or thing. If they do not, then the search is unreasonable. And the victim of the illegal search then has standing to use the Exclusionary Rule to keep the tainted evidence out at trial.

Attorney Genaro R. Cortez.

Phone: 210-733-7575.