When Is It OK for a Police Officer to Search Me?
What is the Fourth Amendment?
The Fourth Amendment to the US Constitution states:
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.
What makes a search legal or illegal?
Generally, police need a warrant to search your home or property where you have a reasonable expectation of privacy, unless an exception applies. The police can normally obtain this warrant by providing sufficient evidence that they have probable cause to believe a crime has been committed before a local Tennessee judge or federal magistrate. The evidence must be under oath or affirmation. The evidence must describe the location of the search and the items to be searched.
Search warrants must be executed within the time limits set by Tennessee Rule of Criminal Procedure 41.
A warrantless search by an officer is illegal unless a specific exception applies.
What are the exceptions to the warrant requirement for police searches?
The police can search you or your property if any of the following exceptions apply. The burden is on the prosecution to show that the police searched according to an approved exception.
Consent
The police do not need to obtain a warrant if you voluntarily give the police permission to conduct a search. The police cannot coerce you into giving consent. Courts determine whether consent was voluntary based on the totality of the circumstances.
Generally, we recommend that you decline to give consent and ask to speak to your criminal defense lawyer.
The search is incident to a lawful arrest
If the police have lawful grounds to arrest you, they may search your person and the area within your immediate control to ensure officer safety and preserve evidence.
Items in plain view
Police may seize evidence in plain view if they are lawfully present, the item’s incriminating nature is immediately apparent, and they have lawful access to it.
Urgent circumstances and probable cause
The police can search you or your property when exigent circumstances exist. Examples of legitimate emergency searches include:
- Prevention of an escape
- Ensuring the safety of life
- Preventing serious damage to property
- Preventing evidence from being destroyed
A Terry pat-down search
Police may conduct a limited pat-down of the outer clothing if they reasonably suspect a person is armed and dangerous. The search must concern your safety. Patting you down to search for drugs is likely not going to qualify as a valid Terry pat-down search.
How do you exclude evidence obtained through an illegal search?
Our Franklin criminal defense lawyer may file a motion to exclude any evidence the police obtain due to an illegal search and seizure. The burden is on the prosecution to convince the court that the search was legal.
In many cases, if the evidence is excluded, we can argue that the criminal charges should be dropped or that the prosecution should agree to a plea bargain to less serious charges due to a lack of evidence or a weak case.
Can the police search my car?
Generally, in Tennessee, the police can search your vehicle without a warrant if one of the exceptions applies. Police may search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime under the automobile exception to the Fourth Amendment.
If the police legally impound your car, they may conduct an inventory search if it is performed according to standardized police procedures.
What are your rights if the police begin to search you?
You do have rights if a police officer asks to search or conducts a search without your consent (you have the right to refuse consent). These rights include the following:
- You may ask if you are free to leave; whether you can leave depends on whether a reasonable person would feel free to do so under the circumstances.
- You have the right to request a lawyer, particularly during custodial interrogation.
- You do not have to provide any self-incriminating statements or information.
Generally, you should stay calm and follow the officer’s instructions. You can assert your Fourth Amendment right when you speak with our criminal defense lawyers.
Have you been charged with a crime in Tennessee? You may benefit from speaking with an aggressive Franklin criminal defense attorney to protect your rights, including your right to be free from illegal searches.
Call us or use our contact form to schedule an appointment with the Law Offices of Adrian H. Altshuler & Associates today. We also have offices in Brentwood and Columbia to serve you. We arrange to see clients in custody when necessary.