Search and Seizure
Arrest
The Right to Remain Silent (Miranda Warnings) and Confessions
Double Jeopardy
Taking the Fifth (the Privilege against Self-Incrimination)
Right to a Jury Trial
Search and Seizure
The Fourth Amendment to the Constitution protects individuals from having themselves or their property illegally searched or seized. It is because of the Fourth Amendment that the police or other government officials must follow certain rules and regulations when performing actions such as making an arrest, interrogating someone, or searching a person, home, automobile or other possessions that a person generally has a right to keep private.
Search with a Warrant
Search without a Warrant
Search with a Warrant
In most cases, when the police want to conduct a search they must obtain a warrant that states the place to be searched and what the police are looking for. In order to get a warrant, the police must have probable cause to believe that the items they are looking for will be found on the person or in the place that they plan to search. Of course, there are times when the police do not need a warrant, and these situations are discussed under the heading "Search without a Warrant."
Search without a Warrant
There are some situations or circumstances in which the police do not need a warrant to conduct a search. Generally, there are six exceptions to the rule requiring a warrant to conduct a search. They are: arrest; automobile searches; plain view; consent; stop and frisk; and hot pursuit/evanescent evidence.
Arrest
Automobile Search
Plain View
Consent to a Search
Stop and Frisk
Hot Pursuit/Evanescent Evidence
Wiretapping
Arrest
When the police make a legal arrest of a person, they may search that person even if they do not have a search warrant. The police may also search anything that is within reach of the person being arrested. For example, if the person is seated at a desk when the arrest is made, the police may search the desk.
Automobile Search
If the police have probable cause to believe that a car contains contraband, they can search the car without a warrant. The police can also search any containers or luggage that are in the car. However, the police cannot search the passengers of a car simply because there is probable cause to search the car.
A car can also be searched if the police arrest the driver of the car. An automobile search that is incident to the arrest of the driver does not have to be based on probable cause. The search is based on the legal arrest of the driver and must be limited to the interior passenger compartment of the car and any containers within the passenger compartment.
Plain View
If the police are legally present in a particular place and there is an object which is in the plain view of the police that they have probable cause to believe is evidence of a crime, the product of a crime, or an instrument used in the commission of a crime, the police can seize that object even if they do not have a search warrant. For example, if the police enter an office to arrest someone and they do not have a search warrant, the police may only search the person being arrested and whatever is in that person's reach. However, if the police can see a gun sitting on a bookshelf that is across the room, they can seize that gun even though the bookshelf across the room was not within the reach of the person being arrested.
Consent to a Search
The police can conduct a search without a warrant if the person to be searched or the person who owns the premises to be searched voluntarily gives his/her consent to the search.
Stop and Frisk
If a police officer has a reasonable suspicion that a person has committed a crime or is planning to commit a crime (for example, the officer observes someone casing a store), then that officer may stop and question the person. While the officer is questioning the person, if he/she develops a reasonable belief that the person is armed and dangerous, then the officer may pat the person down. This is a very limited type of search. The officer cannot do any more than pat down the outside of the person's clothing. The officer can only place his/her hands inside the person's clothing if he/she feels a weapon or something that could be a weapon.
Hot Pursuit/Evanescent Evidence
If the police are engaged in a genuine hot pursuit, they can enter and search any premises if it is part of the hot pursuit. There is no warrant necessary for the search of a premises that was entered in the course of a hot pursuit.
Generally, the police may seize evanescent evidence without first obtaining a warrant. Evanescent evidence is evidence that is not permanent, such as the blood alcohol level of a drunk driver or tissues or fibers that are under the fingernails of a murderer. This type of evidence will fade and disappear given enough time, so normally the police can seize such evidence without a warrant because the time it would take to get a warrant may be all the time it takes for the evidence to fade. A drunk will sober up and a murder suspect can wash his/her hands.
Wiretapping
The police need a warrant to tap phones or rooms, but they do not need a warrant to place a wire on an informant or on an undercover officer and then record the conversation that the informant has with a suspect.
Arrest
Arrest With a Warrant
Arrest Without a Warrant
Arrest With a Warrant
Normally, the police only need a warrant to arrest someone if they are entering that person's home to make the arrest or if they are arresting someone for committing a misdemeanor that the officer did not witness.
Arrest Without a Warrant
The police can arrest someone who they have probable cause to believe committed a felony without getting a warrant. The police can also arrest without a warrant someone whom they witness committing a misdemeanor.
The Right to Remain Silent (Miranda Warnings) and Confessions
Everyone is familiar with the Miranda warning. Most people know the Miranda warning as being "read your rights": "You have the right to remain silent. If you do not remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you." The Miranda warning must be given to anyone who is in police custody before interrogation. Although it is not necessary for the police to give the Miranda warning when arresting someone, they will normally give the warning at the time of arrest.
The Fifth Amendment's protection against self-incrimination and the Fourth Amendment's protection against illegal search and seizure are the source for the requirement that the Miranda warning be given before an interrogation. At any time during an interrogation, a person may ask to have his/her attorney present. Once this request is made, the interrogation should end and not resume until the attorney arrives.
Before the police obtain a confession from a suspect, the suspect must voluntarily waive his/her right to an attorney. Generally this means that the suspect will sign a statement acknowledging he/she has been given the Miranda warning, understands it, and wants to make a confession without having an attorney present.
Double Jeopardy
The Double Jeopardy clause of the Fifth Amendment to the Constitution guarantees that no one may be put on trial twice for the same crime.
Taking the Fifth (the Privilege against Self-Incrimination)
The Fifth Amendment protects anyone from having to give testimony that would be self-incriminating. Generally, if a person is called as a witness in a criminal trial, he/she may refuse to answer any question if the person would incriminate himself or herself by answering.
Right to a Jury Trial
Under the Sixth Amendment to the Constitution, a person who is on trial for a crime that carries a sentence of more than six months normally has the right to a trial by jury.
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