Articles Posted in Home Search and Seizure

iStock_000006229203XSmall-214x300As the digital age advances, technology becomes ever more entwined into our daily lives. Stunning revelations about mass government surveillance[1] have led many to wonder what privacy protections still remain for citizens. With the death of Justice Antonin Scalia[2]; the most ardent defender of the Fourth Amendment on the Supreme Court, some feel that the Amendment’s protections will continue to erode in the digital age.

What is the Fourth Amendment?

The Fourth Amendment of the Unites States Constitution is one of the bedrocks of our criminal justice system. While relatively short, the Amendment encapsulates a foundational idea of our government. It guarantees citizens’ protection against unreasonable search and seizure, and establishes the importance of a warrant.  The Fourth Amendment reads as such:

CYMERA_20130829_142314.jpgText messaging is one of the primary methods of modern communication. It is a relatively simple process that is convenient for both the sender and recipient. Even though text messaging is thought of as a private written conversation, text messaging is not as secure as you may believe. This is especially concerning if you may have some inappropriate text messages on your phone regarding marijuana consumption, which is a crime that police officers keenly investigate. Even though you may believe that your private conversations should be protected, the laws protecting your privacy are not as strong as you may believe they are.

Let’s begin with the basics of text messaging. A text message is a written communication that lands in four locations: it begins in your phone, is then sent to a short message center (SMC), which transfers the data to your service provider’s network, and ultimately lands in the recipient’s phone. Because the data lands in the hands of a third party, namely your phone service provider, it loses much of the privacy protections that a normal communication would have, like a written letter that is in an envelope in your desk.

There are two types of cell phone service providers: electronic communication services (ECS) and remote computing services (RCS). (Katharine M. O’Connor, 😮 Omg They Searched My Txts: Unraveling the Search and Seizure of Text Messages, 2010 U. Ill. L. Rev. 685) If your carrier is an ECS, then the government has to get a warrant to search any electronic communications within 180 days (after which the government only needs a subpoena). If your carrier is labeled a RCS, then the government does not need a warrant, but only needs a subpoena. For example, Verizon Wireless’ electronic communications are obtainable through a subpoena, but the electronic communications are only available for 10 days (request has to be made within this window).

iStock_000009680929XSmall.jpgPolice officers cannot bring drug dogs onto a person’s property to search for evidence without first obtaining a warrant to conduct the search, according to a recent Supreme Court decision. Though this decision strengthens one’s fourth amendment protection against unreasonable searches, one should still know how officers could find a constitutional exception to the warrant requirement, allowing police to search the home. Even with a warrant or warrant-exception, the constitution places certain limitations upon the police’s search of a suspect’s home, which the police must not exceed.

A common way police are able to search the home without a warrant is through consent of the homeowner. Consent acts as an exception to both the probable cause and warrant requirements of a search, thus one must be aware that, when she consents to a search, she is relieving the police of their duty to follow constitutional safeguards against unreasonable searches. When requesting consent, the police are not obligated to tell the suspect he has the right to decline the police’s request. The police could even threaten the suspect in order to obtain consent, and such threats are lawful as long as the police can legally carry the threat out. For instance, a police officer could tell a homeowner if the homeowner doesn’t concede to a search, the officer may go to a magistrate judge to obtain a warrant for the search. However, if the threat to obtain consent is illegal for the police to follow through on, such as threatening to come back with drug dogs to conduct a warrantless search of the home, then the consent obtained would be invalid.

When a homeowner does decide to concede to a police search, he is able to limit the search to wherever he wants, such as conceding search of the living room, but not allowing search of the bedroom. The item or person the police are searching for can also limit the consent-based search. For example, if police get consent to search for an escaped prisoner, the police can only search where a person could be hiding like closets, but not drawers or small containers. However, if police obtain consent to search for marijuana, then police have free reign to search virtually everywhere in the house where marijuana could be hidden. A police officer may also get consent to search your home from another person who jointly controls the living area. If the other person does not actually jointly control the living area, but a reasonable officer would have (in good faith) believed the other person had joint control, then an officer could still obtain valid consent (to search the home) from the other person. In the circumstance where one homeowner objects to a search but another homeowner agrees to the search, a officer would have to yield to the objecting homeowner, and could not conduct the search without a warrant or warrant-exception besides consent. If you are involved in a criminal case where search or seizure is an issue, it is imperative that you contact a criminal defense attorney who can ensure that the courts will fully respect your fourth amendment rights.