Expectation of Privacy
Under what circumstances can a law enforcement officer search an area that I have an expectation of privacy in? I’m Oklahoma City Attorney Aaron Easton and this is part two of a three-part series on your constitutional right under the United States Constitution and Oklahoma Constitution to be protected against unreasonable searches and seizures by the state via law enforcement typically.
So today we’re going to talk about the times and circumstances in which a law enforcement officer can breach your expectation of privacy and search an area or arrest you which is a seizure under the Fourth Amendment.
Ways in Which a Law Enforcement Officer Can Search
The first two ways I’ll call them 1a and 1b are when the law enforcement agency obtains a valid search or arrest warrant based on a particular area to search or a particular person to arrest or if they actually have an invalid warrant but it’s deemed that that warrant was obtained through good faith or reasonable mistake. So that’s you know 1a and 1b.
Now the other ways there are several other ways in which a law enforcement officer can search you and be on the right side of the Constitution for them and one of the common ways is known as the automobile exception. So if you’re in an automobile and you’re stopped by a law enforcement officer and that officer develops probable cause that there is evidence of a crime or the fruit of a crime inside your vehicle, they are allowed to search that vehicle via that probable cause without getting a warrant.
There’s Supreme Court decisions, U.S. Supreme Court decisions that have said that there is an exception for automobiles and so that is one common exception. If they have probable cause, they can search your vehicle.
Search Incident to Lawful Arrest
A second exception is a search incident to lawful arrest. So if you’re arrested lawfully via probable cause or an arrest warrant, a law enforcement officer is allowed to search you including your pockets and things within your arm’s reach. So that’s another way a law enforcement officer can search you legally.
The third way which usually lumped in under searches but it’s not really a search is what’s known as the plain view doctrine. If law enforcement sees an item that is immediately apparent to them that is contraband or again evidence of a crime, instrumentality of a crime, or a fruit of a crime, they can seize that property without a warrant.
Another common way again not this is a search but kind of miscategorized a little bit but it’s consent. So they’re not developing probable cause necessarily, they don’t have a warrant, but they simply ask you for permission to search. So if you provide that consent to an area that you have the right to provide them to or they believe with good faith that you have the right to provide them consent to search, then they can search that area.
What’s important to know a little aside here about consent searches is you can withdraw your consent at any time unless they’ve developed probable cause prior to your withdrawal and you can limit it as well. You can limit it to you can search this room but not that room.
Now perhaps that’s going to raise their eyebrow but you have that right. You also have the right of course and I would advise you to in most circumstances simply deny consent for them to search even if you feel like you have nothing to hide. Another example of when law enforcement can search without a warrant is emergency circumstances and there’s kind of three subcategories under here.
One is hot pursuit. When law enforcement is in hot pursuit of someone who they have probable cause to believe has just committed a crime, they may enter a constitutionally protected area to seize that individual. A second one under this subheading is emergency situations. If they feel someone’s life is in imminent danger, they can for instance enter your home to render aid to an individual and the third under that subheading of emergency situations is if they have reason to believe that you’re actively destroying evidence, they can actually enter a home to prevent that destruction of evidence as well.
And then the last subcategory, I’ll do a video on this in and of itself because it’s a major topic, is what’s known as a Terry stop or a Terry frisk. A Terry stop is when an officer can stop you legally if they have a reasonable suspicion to believe that you are about to commit a crime or in the commission of a crime or have just committed a crime and then Terry frisk gives law enforcement the right to do a on the outside of your clothes pat down search for weapons if they have reason to believe that you may have weapons on you.
So those are some of the ways a law enforcement officer can search you legally. Now as you probably would guess with this there are other ways and then within the ways we’ve talked about there are just a lot of nuances that are really important that’s going to change whether or not the search was legal or illegal under the constitution.
If you have been searched by a law enforcement officer, if you have any questions whatsoever whether that search was legally done or not, you’re really going to want to talk to an attorney privately and confidentially about the specifics of your case, about the facts and circumstances surrounding the search that you were involved in.
If you’d like to speak to an attorney with my firm for a free consultation we invite you to do so and you can reach us online at postconviction.lawyer or at (918) 932-2833.