Illegal Search and Seizure FAQs
Here are the most commonly asked questions regarding your rights when police search you, your home or your car.During a traffic stop, can the police search my car and frisk me?
In general, the police are allowed to search and frisk you if they have a reasonable suspicion that you are armed during a traffic stop. This is not an illegal search and seizure. In addition to frisking for weapons, the police can also pat you down for contraband material, like drugs. A recent Supreme Court ruling altered the laws that allow a police officer to search a car after a traffic stop. The Court ruled that a search of the passenger compartment of a car is only allowed if either:
- The driver/arrestee is within reaching distance of the passenger compartment at the time of the search (meaning that the police cannot search your can if you are arrested in the back of the squad car), or
- It is reasonable to believe the vehicle contains evidence of the offense of arrest (meaning the police cannot search your car for weapons unless they arrested you for a violent crime or illegal weapon possession).
In short, yes. If the police have towed and impounded your car, they have the authority to search your vehicle. This search can be as comprehensive as the police wish and will most likely include opening any locked compartments or boxes found within your car. It does not matter what your car was towed and impounded for, it could be for something as simple as a parking violation or as serious as auto-theft. Regardless, the police can search your car if it has been impounded.
Police cannot tow and impound your car for the sole purpose of searching it, however. Police are required to follow strict procedures when it comes to these types of searches.
At what point are police considered "searching" during an investigation?
In general, a court will ask two questions to conclude whether a police investigation turned into a search. First, the court will ask if the person whose home or property were being investigated/searched expected a degree of privacy. Next, the court will ask if that expectation of privacy was reasonable. This question is answered in the light of society, meaning the question revolves around whether society would recognize some sort of privacy in the matter in question.
For an investigation to turn into a search, a court must conclude that the investigation impinged or intruded upon a person's "legitimate expectation of privacy." This is found when the answer to the above two questions is yes. If either question can be answered in the negative, meaning that the person being search either did not have something to keep private, or if the expectation of privacy was not reasonable, then there was no search.
Is my private property really that private?
Property that is within your house or on your property is generally considered to be private. If the police have to enter onto your property in order to get a look at the evidence or other property that they wish to use in court, they generally have to have a search warrant to do so. However, there are certain situations, like stopping suspects from destroying evidence, in which police can search and seize your property in your home without a warrant. This is because the situation itself demands prompt action by the police.
So, now that we have the general rule, what does this mean for you? In most situations, law enforcement officers are allowed to take photographs from the air above your home, or can eavesdrop on your conversations in order to get enough information to get a warrant. When listening to conversations, however, police cannot use hi-tech equipment in either of these circumstances without rendering the eavesdropping an illegal search and seizure.
Generally speaking, the more sophisticated the listening or photography equipment is, the more likely it will be that the police will be required to obtain a warrant before conducting their search. If you consent to an officer searching your home, however, you waive any right to challenge a warrantless search later on. Additionally, if an officer is on your property for a legitimate reason (perhaps pursuing a felon), any contraband that is in plain sight of the officer is fair game to be seized, even without a search warrant.
The police told me they have a search warrant, what is it and what did they need to do to get it?
A search warrant is a judicial order issued by a judge or magistrate that gives permission and authorizes the police or other law enforcement agency to conduct a search of a location or person and to seize any evidence of a criminal offense. The search warrant is addressed to the person to be searched or to the person who owns the premises to be searched and informs the addressee that the judge issuing the warrant has found it reasonably likely that certain evidence may be found there.
Generally speaking, police officers or other law enforcement agencies must apply for a search warrant before conducting a search of the person or premise in issue. If any search is conducted in the absence of a search warrant, it is presumed to be unreasonable and will likely be ruled an illegal search and seizure. If a challenge to such a search is made, the police or parties conducting the search will have to explain and justify their reasons for conducting a search, as well as explain why a warrant was not issued before the search.
The police must normally make a minimum showing to the judge issuing the search warrant in order for the judge to make the decision to grant the order. Police have to show the judge that:
- Probable cause exists that a crime has occurred, and
- Evidence or contraband linked to that crime will more than likely be found in a certain location on the property or person at issue.
What powers do police get when they have a search warrant?
A search warrant gives the police the legal authority to enter a premise without permission of the owner to search for the evidence listed in the warrant in the places authorized by the warrant. For example, if the search warrant allows the police to search the bathroom of a home for illegal drugs, then the police should confine their search to the bathroom.
There are certain exceptions to this search warrant rule which routinely allow police to conduct a wider-spanning search than allowed by the search warrant, however. In general, police can search beyond the scope of the search warrant in order to ensure their own safety as well as the safety of others. In addition, police can search widely to stop the destruction of evidence, look for evidence beyond the scope of the original search warrant because their initial search revealed that there may be additional evidence in other locations on the property, or to find more evidence based upon what is in plain view.
Some examples may clarify these points. If the police have obtained a warrant to search the garage of a house, they may walk through the home in order to get to the garage to conduct their search. If, on the way to the garage to look for drugs, the police hear toilets flushing upstairs, the police may broaden their search in order to check the bathrooms for illegal drugs that are likely being flushed down the drain. Or, a search of a dining room may be expanded to the kitchen if police hear a gun being loaded by the refrigerator.
Lastly, and it should be emphasized, the police can seize evidence that is in plain view if the police are there for a legitimate reason. For example, if, on their way to search the garage, the police see four bags of marijuana sitting on the coffee table, the police can seize the drugs.
Are search warrants required for every search?
As you may have guessed from reading above, the answer to this question is no not every search is an illegal search and seizure in the absence of a warrant. Here are some of the main examples in which police or other law enforcement agencies do not need a search warrant to conduct a search:
Consent. If the police show up at your door and ask you if they can come inside to search for drugs and you consent to the search, then the police do not need a warrant.
Emergency. If the police's search is in an emergency situation, then they may not need a search warrant. For example, if the police are pursuing an armed suspect that has disappeared into a small neighborhood, they may not need a search warrant to search any of the homes there because the suspect is putting the residents at risk.
Searches incident to arrest. After a person has been arrested by the police, the law enforcement officers may conduct a search of the person and his immediate surroundings for weapons that may be dangerous to the officers or others.
Searches incident to arrest. After a person has been arrested by the police, the law enforcement officers may conduct a search of the person and his immediate surroundings for weapons that may be dangerous to the officers or others.
Plain view. Police do not need a search warrant to seize evidence that is in plain view of a place where the police are legally authorized to be.
My landlord/roommate gave the police permission to search my belongings - was this an illegal search and seizure?
Generally speaking, the person in charge of an area has the power to give permission to the police to search the area. So, if you share an apartment with a roommate, your roommate probably has the power to give permission to the police to search common areas in the apartment, like the living room or the kitchen, but not your personal bedroom.
Likewise, your landlord cannot give permission to the police to search any part of your apartment, except places like a communal common area, like a washer/dryer room in an apartment building. However, you should keep in mind that it is not an illegal search and seizure if the police search your apartment without any permission if they feel that the search is an emergency.
Searches and Seizures:
The Limitations of the Police
Download article as a PDF
Although people in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property in order to look for and seize illegal items, stolen goods or evidence of a crime. What rules must the police follow when engaging in searches and seizures? What can they do in upholding the laws, and what can't they do?
What the Police MAY Do:
The Limitations of the Police
Download article as a PDF
Although people in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property in order to look for and seize illegal items, stolen goods or evidence of a crime. What rules must the police follow when engaging in searches and seizures? What can they do in upholding the laws, and what can't they do?
What the Police MAY Do:
Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures.
To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause.
In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless."
Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred.
To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause.
In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless."
Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred.
Did you have an expectation of some degree of privacy?
Was that expectation reasonable in our society's view?
Note: In deciding whether there was a "legitimate expectation of privacy," a court will consider two things:
Example: You have a semi-automatic rifle that you stole from a pawn shop. You leave the rifle laying on the hood of your car when you get home. You do not have a "legitimate expectation of privacy" with regard to things you leave on the hood of your car, and the police may take the rifle. No search has occurred.
Police may use first-hand information, or tips from an informant to justify the need to search your property. If an informant's information is used, the police must prove that the information is reliable under the circumstances.
Once a warrant is obtained, the police may enter onto the specified area of the property and search for the items listed on the warrant.
Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to:
- Ensure their safety or the safety of others;
- Prevent the destruction of evidence;
- Discover more about possible evidence or stolen items that are in plain view; or
- Hunt for evidence or stolen items which, based upon their initial search of the specified area, they believe may be in a different location on the property.
- Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
- Police may search your person and the immediate surroundings without a warrant when they are placing you under arrest.
Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there.
When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside.
Police may search without a warrant if they reasonably fear for their safety or for the public's safety.
Example: If the police drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant.
If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant.
Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money.
Perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.
Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant.
Police may perform a pat-down of your outer clothing, in what is called a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
What the Police MAY NOT Do:
The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
If evidence was obtained through an unreasonable or illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule."
The police may not use evidence resulting from an illegal search to find other evidence.
The police may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.
Unless there is a reasonable suspicion that it contains evidence, illegal items, or stolen goods, the police may not search your vehicle. If your car has been confiscated by the police, however, they may search it.
Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. If they have a reasonable suspicion, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.
Get Your Case Reviewed for Free by a Criminal Defense Attorney
If you're facing criminal charges, often times an attorney can find problems with how evidence was obtained which could lead to its exclusion at trial. Because of this, it's important to have an experienced criminal defense attorney at your side as early in the process as possible. A good attorney can make all the difference, so get in touch with one today for a free review of your case.
Rights When Taking Photos/ Video/ Audio Recordings
This information is available as a PDF or as a pocket card by contacting your closest ACLU-PA office.
Please note that the PDF version has not yet been updated to reflect the fact that in June 2014, the US Supreme Court held that law enforcement cannot search a cellphone without a warrant (Riley v. California).
Taking photographs and videos of things that are plainly visible from public spaces is your constitutional right. That includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, law enforcement officers often order people to stop taking photographs or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public.
Your Right to Take Videos and Photographs
When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view (see note below about sound recording). That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.
- When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
- Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.
- Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment about what is "interfering" more than yours. So if an officer orders you to stand back, do so.
- If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU for help, rather than risking arrest.
- Police officers may not generally confiscate or demand to view your photographs or video or search the contents your cell phone without a warrant. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them). (Note: This section has been updated to reflect the June 2014 US Supreme Court decision in Riley v. California, in which the court held that police need a warrant to search a cellphone.)
You have a right to capture images in public places, but you don't always have a right to record what people say. Pennsylvania's Wiretap Law makes it illegal to record private conversations - which can include conversations in public places - without the consent of all parties to the conversation. Conversations with police in the course of their duties are not private conversations, but many other things you may record on a public street are.
- You have the right to videotape and audiotape police officers performing official duties in public. It is not a violation of the Pennsylvania Wiretap Law to do so. That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest.
- You can record people protesting or giving speeches in public.
- The Pennsylvania Wiretap Law does make it illegal to record any electronically transmitted conversation. Never record a telephone conversation without the permission of all parties to the conversation.
If You Are Stopped or Detained for Taking Photographs or Videos
- Always remain polite and never physically resist a police officer.
- If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
- If you are detained, politely state that you believe you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don't want to invite a charge for "resisting arrest."
If you believe your right to protest has been violated, please contact the ACLU of Pennsylvania toll-free at 877-PGH-ACLU (Western Office) or 877-PHL-ACLU (Eastern Office).
You can order pocket cards with this information by calling either ACLU office at the numbers above.
If you are stopped for questioning
- Stay Calm. Don't run. Don't argue, resist or obstruct the officer even if you are innocent or your rights are being violated. Keep your hands where the officer can see them.
- Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
- You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud.
- Ask if you are required to identify yourself if instructed to do so. Local laws may require you to identify yourself.
- You do not have to consent to a search of yourself or your belongings, but an officer may "pat down" your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search.
- Stay Calm. Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
- Upon request, show your driver's license, registration and proof of insurance.
- If an officer asks to look inside your car, you can refuse to consent to the search. But if an officer believes your car contains evidence, your car can be searched without your consent.
- Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave.
If police, immigration or federal agents come to your home
- You do not have to let them in unless they have certain kinds of warrants.
- Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it.
- A search warrant allows an officer to enter the address listed on the warrant, but officers can only search for the item listed in the location listed.
- An arrest warrant allows an officer to enter the home of the person listed on the warrant if they believe the person is inside.
- A warrant of removal or deportation (ICE warrant) does not allow officers to enter a home without consent.
- Even if the officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.
If you're contacted by the FBI
- If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
- If you are asked to meet with an FBI agent for an interview, you have the right to say you do not want to be interviewed.
- If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can choose to only answer questions on certain topics.
You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country.
- If you are not a U.S. Citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
- Do not lie about your citizenship status or provide fake documents.
If you are arrested
Do not resist arrest, even if you believe the arrest is unfair.
Say you wish to remain silent and ask for a lawyer immediately. Don't give any explanations or excuses. If you can't afford a lawyer, one will be provided.
Remember, you have the right to an attorney and one must be provided to you free of charge if you are facing jail time.
Ask the judge if you can be released without bail on bond or have the bail lowered.
*This guide is meant to serve as basic instruction when interacting with police officers, FBI and immigration agents. This is not legal advice. Be sure to consult a lawyer.
2014, Fox News
Flashing headlights to warn of speed traps
Vehicles travel north from San Diego to Los Angeles along Interstate Highway 5 in California December 10, 2013. (REUTERS/Mike Blake)2014, Fox News
Flashing headlights to warn of speed traps
A federal judge in Missouri ruled this week held that drivers have a First Amendment right to flash their headlights to warn other motorists of nearby police and speed traps.
The order by U.S. District Judge Henry E. Autrey in St. Louis on Monday stems from a lawsuit filed by Ellisville resident Michael Elli. In 2012, Elli flashed his headlights to warn oncoming vehicles of a radar set up by police in the town of Ellisville.
A flash of headlights is a common way motorists communicate to oncoming drivers of either a dangerous situation or the presence of police — in essence, a warning to slow down.
An officer saw the flash and pulled over Elli, who could have faced a fine of up to $1,000 if convicted. Elli, was accused of "[f]lashing lights on certain vehicles . . . warning of RADAR ahead," according to court papers obtained by The Wall Street Journal.
He faced a fine up to $1,000 in addition to points on his license, according to the report.
The city later dropped the charge, but the American Civil Liberties Union sued on Elli's behalf anyway, claiming the arrest violated his First Amendment right to free speech.
Ellisville City Attorney George Restovich said the city changed the policy after the case went to court and no longer pulls over people for flashing headlights.
"The reality is that the injunction doesn't change the way the city has been operating for the past 12 months," Restovich said.
At a hearing on the lawsuit last year, Ellisville officials made the case that flashing headlights could interfere with a police investigation. But Autrey said in his ruling that the flashing of headlights "sends a message to bring one's driving in conformity with the law — whether it be by slowing down, turning on one's own headlamps at dusk or in the rain, or proceeding with caution."
“The chilling effect of Ellisville’s policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals remains, regardless” of the city’s decision to change its policy, the judge wrote, according to The Wall Street Journal.
Tony Rothert, legal director of the ACLU’s Missouri chapter told the Journal's Law Blog that the judge's ruling is a civil rights victory for motorists.
"When someone is communicating in a public street, [he is] expressing [himself] in a way that’s protected by the First Amendment,” Rothert said. "Unless there is a strong reason why the government should be allowed to censor that speech, the police shouldn’t be stopping or prosecuting people because of the content of their speech."
The Associated Press contributed to this report.
Do Police LIE or Trick you to giving up your rights to them?
Yes. Best way to combat that is to KNOW your rights here and without arguing too much, let them know you protest and they'll need to prove their reasons in court. Maybe suggest they call for their supervisor. Hopefully, they'll decide lying to you for a penny ante search isn't worth their time.
Yes. Best way to combat that is to KNOW your rights here and without arguing too much, let them know you protest and they'll need to prove their reasons in court. Maybe suggest they call for their supervisor. Hopefully, they'll decide lying to you for a penny ante search isn't worth their time.
