Archives : 2006 : January

Know Your Fourth Amendment Rights: Reasonable and Unreasonable Search and Seizure

By: Swazi Taylor, Esq. and Jay Mykytiuk

Open up, this is the police! This command is usually delivered with a loud pounding on your door, and usually means that police will soon be entering your home and searching your belongings. In the eyes of the law your home is your castle, but under some circumstances your rights in your residence give way to the power of law enforcement. But this power is not unlimited. The Fourth Amendment to the U.S. Constitution prohibits the police from conducting unreasonable searches and seizures. Determining what is reasonable can be complicated businessso complicated, in fact, that treatises have been devoted to the search and seizure issue. Although the law is complex and constantly evolving, there are several basic rules that govern when, where, and how police officers may search an individuals home. The more familiar one is with these rules; the better-equipped one will be at identifying an illegal search.

Search and Arrest Warrants

Absent exigent circumstances, the general rule is that police officers may only enter a persons home with a search or arrest warrant based on probable cause. A search warrant gives the police the right to search a particular place, at a particular time, and only for particular items as approved by a judge. The warrant must clearly spell out what these items are, and generally, the police may not look for items that are not listed in the warrant. For example, if the search warrant authorizes the police to search for a rifle, police may only search places in your home that are big enough to hide a rifle. Therefore, in this example, a small bureau drawer or a jewelry box on that bureau would be out of bounds.

If the police enter a home pursuant to an arrest warrant, they may only search the areas into which the suspect might reach to obtain weapons or destroy evidence. This area is generally measured by the suspects wingspan.

There are circumstances, however, when police may extend a search beyond the terms of the warrant. The most significant of these circumstances is known as the plain view doctrine. Under the plain view doctrine, police who are lawfully searching a home may seize any items in plain view whose incriminating nature is immediately apparent. Even if the item is not listed in the warrant, if it is in plain view and obviously incriminating, police may rightfully seize it.

Knock and Announce Rule for Police

Generally before entering your home to serve a valid search warrant, police must knock on your door, and announce their presence, rather than simply forcing their way in. The so-called, knock and announce rule requires that police wait a reasonable amount of time for the resident to open the door. If you then refuse to let the officers in, they have the right to force the door open.

As is often the case with rules governing police searches and seizures, however, there are exceptions to the knock and announce rule. Police may forcibly enter your home without knocking and announcing when a more stealthy approach is required to ensure the safety of police officers or to prevent the destruction of evidence. Even when officers do knock and announce, they need only wait a few seconds before bursting in.

Warrantless Searches

Just as there are exceptions to the knock and announce rule, there are also exceptions to the warrant requirement. First, police do not need a warrant to enter and search your home if they obtain the consent of an occupant. Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. Currently, the U.S. Supreme Court is considering what should happen when one spouse consents to a search of the house, while the other spouse does not.

Even without a search warrant and without the consent of an occupant there are still occasions when police may enter and search a home. Although there is no general emergency exception, the court will decide on a case-by-case basis whether an actual emergency existed that allowed police to conduct a warrantless search. Shots fired, screams heard, or fires emanating from inside a building have all been considered emergencies that justify searches without warrants. A federal appellate court recently ruled that the “strong aroma” of a decaying body, wafting through the open window of a dead man’s house, constituted an emergency exception to the Fourth Amendment’s warrant requirement. Essentially, anytime the police have a reasonable belief that and immediate search is required to protect the safety of individuals, police will be permitted to search without a warrant.

Protecting Your Rights

Although search and seizure law can be confusing and is constantly evolving, there are some basic steps you can take to protect your Fourth Amendment rights. First, remember that generally, without a warrant, police have no right to enter and search your home. If a police officer asks your permission to search your home you are under no obligation to consent. Consenting to a search automatically makes that search reasonable, and is essentially a waiver of your Fourth Amendment rights. Consequently, whatever an officer finds during such a search can be used to convict the person. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In fact, police officers are trained to use their authority to get people to consent to a search.

If the police have a search warrant, they may enter your home without your consent. In this case, there are still things you can do to protect yourself. Next, ask to see the warrant. If for any reason you believe that the warrant is not valid, make your objections clear to the officer, and announce that you are not consenting to the search. But remember that it’s always in your best interest to remain calm, polite, and non-confrontational. Even if you believe the search to be unreasonable, you have nothing to gain by interfering with the police officers. A person should not risk injury or a separate charge of “interfering with a police officer.” After voicing your objections to the search, simply stand aside and allow a court to decide later whether the officer’s actions were proper.

Most importantly, you should immediately contact a criminal attorney whenever you have been the subject of a search or seizure. In the event that the police have conducted an unreasonable search of your home, an attorney will seek to suppress the evidence discovered as a result of that search. This means that the illegally obtained evidence may not be used against you at trial. An experienced attorney will know how to protect you when your Fourth Amendment rights have been violated.

Right To Confront Witnesses: Guaranteed by the Sixth Amendment of the Constitution of the United States

By Swazi Taylor, Attorney at Law and Natalie Banach

There are two fundamental principles which guide the United States federal criminal justice system and which protect the rights of an accused in a criminal prosecution. First and foremost is the principle that an accused is presumed innocent. The second basic constitutional principle of law places the burden of that proof squarely upon the prosecution. These two principles are vital components of the criminal justice system which apply to a criminal defendant up until a verdict is reached.

Rights Guaranteed to Persons Charged with Crimes

Yet there are many more rights guaranteed to persons accused of criminal conduct or charged with the commission of crimes. These rights are contained within the Bill of Rights of the Constitution of the United States and are also contained within the Constitutions of each of the States of these great United States. In addition, the Fourteenth Amendment of the Constitution of the United States extends these protections to all citizens of each state within the United States. For example, the Fourth Amendment guarantees the right of people to be secure in themselves and their homes and thus requires a search warrant to issue only with probable cause. Additionally, the Fifth Amendment guarantees that no person shall be held to answer for an infamous crime (interpreted as felony) without a Grand Jury indictment, that no person shall be tried twice for the same crime (double jeopardy) and that no person shall be compelled to be a witness against himself (self-incrimination), for example. It is the Sixth Amendment of the Constitution of the United States which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committedand to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

As the Sixth Amendment states and the Supreme Court has ruled with several exceptions that, an accused is guaranteed the right to a trial by jury. Further, an accused has the right to be informed of the nature and cause of the accusation. This generally occurs at the arraignment, where an accused is presented with the complaint that contains the charges, which have been filed against him. It is the “confrontation clause” of the Sixth Amendment that guarantees an accused the right to “be confronted with the witnesses against him. [Exactly what does this mean?] Black’s Law Dictionary has traditionally defined confrontation as the “act of sitting a witness face to face with defendant [accused], in order that the defendant may make any objections he has to the witness’, or that the witness may identify the accused,” Black’s Law Dictionary, 4th Edition.

Right of Accused to Question Witnesses

The essence of the right to confront witnesses, as guaranteed by the Sixth Amendment of the Constitution of the United States, is the right of an accused to confront his accusers, that is, to cross-examine (question) the witnesses who present evidence against him. The questioning is designed to uncover bias, inability to perceive or observe, and, generally, to dilute the strength of the evidence that the witness offers. The Sixth Amendment was written to prevent secret trials and to prohibit the use of using as evidence written statements from absent witnesses (hearsay), except in rare situations codified in the Federal Rules of Evidence and various State Evidence Codes. In recent years, legislators, concerned that those accused sometimes escaped punishment because the minors were afraid to testify in open court, have written special confrontation rules for minor complainants in child sexual assault cases. Consequently, new evidentiary rules were adopted to allow children to testify via closed-circuit television. Here, the accused can see the child, but the child does not see the accused. Instead, the child faces defense counsel, who conducts the cross-examination. Although every accused is guaranteed the right to cross-examine any witness that comes before them, an accused is not required to provide any new evidence or any witnesses to prove their innocence. Remember, it is the prosecution who bears the burden of proof beyond a reasonable doubt. Therefore, an accused may sit silent and say or do nothing. Generally, though, an accused hires an attorney to assist in his defense. The accused will work with counsel in deciding how his defense will proceed. The defense may consist of simply challenging the reputation, credibility or legality of the prosecution’s evidence or witnesses. Or, the defense may merely challenge the prosecution’s case by arguing that the proof does not rise to the constitutional level of proof required, that is, proof beyond a reasonable doubt.

The defense of a person charged with the commission of a crime is complicated and dictated by many varied rules and principles. Therefore, if you or a loved one is under investigation or is accused, it is imperative that you seek the counsel of an experienced criminal law attorney, who can help unravel the maze of the criminal justice system and protect the accuseds rights.