Staff Reporter (2020 – 2021)
When a police officer politely asks, “can I take a look around?” referring to your car or home, most individuals might consider saying “yes” because they are conscious of the officer’s authority and are afraid to challenge it. However, the Fourth Amendment of the U.S. Constitution grants every person the right to say “no” under certain circumstances which includes warrantless searches or lack of probable cause. The purpose of this article is to provide examples of when an individual has the right to say “no” and what to do when law enforcement ignores that right.
What does the Fourth Amendment generally protect?
The Fourth Amendment governs police conduct during searches and seizures.1 This amendment gives people the right to be “secure in their persons, houses, papers, and effects” against “warrantless searches and seizures.”2 In other words, law enforcement does not have the right to search you, your house, or any of your possessions, or seize any of your possessions without a valid warrant.
However, there are several exceptions to this right. The most common exceptions are: (1) when police officers have “probable cause”3 to believe a crime has taken place; (2) there are exigent circumstances4 that endanger others; (3) or officers obtain voluntary consent.5 While exigent circumstances and voluntary consent are commonly understood, probable cause does not have a concrete definition and is determined on a case-by-case basis.6 This legal standard essentially asks “whether a reasonable officer would have made the same or similar decision under the same or similar circumstances”7 to conduct a warrantless search. If the answer is yes, the police officer is likely within his or her right to conduct a warrantless search. Common warrantless searches include searches of cars, homes, and cellphones. These types of warrantless searches are discussed in further detail below.
You have the right to say no to a warrantless car search.
It is 11:30 PM on a Thursday night. You are driving back home after a long and difficult 14-hour workday. All you want to do is climb into your bed and go to sleep. Although you are keen to get home, you slow down, perhaps a little more than normal, to stay make sure you stay alert and safe. Shortly after slowing down, you see police lights unexpectedly flashing behind you and an officer directing you to pull over. A little confused, you comply but wonder why you are being stopped because you are certain you did not break any traffic laws. The police officer approaches and asks for your license and usual paperwork, which you dutifully hand over. He informs you that he stopped you because of your slow speed. He continues asking you routine questions about where you are coming from, your workplace, where you are going, and then casually asks if he can “take a look around” inside your car. What do you say?
Most people in this situation would say “Yes, Officer,” for several reasons. They may feel they cannot object to law enforcement. Alternatively, they may think that agreeing to the search may be the quickest way to avoid a confrontation, reach a resolution, and go on their way.
However, the Fourth Amendment categorizes this search as a “warrantless search.”8 In short, the officer has not handed you a legally binding document—i.e., a warrant—or given you a reason—i.e., probable cause—to search your car. In this case, the Fourth Amendment grants you the absolute right to say “no.” When you say “no,” the police officer should stand down, conclude the traffic stop, and go on her way.
If the officer proceeds to search your car despite your objection, it is important that you do not interfere with the officer in any way. If the officer finds and seizes anything as evidence of a crime in such a search, it is likely inadmissible in court because the officer did not a valid reason to search your car. Therefore, the evidence collected against you cannot be used to charge or prosecute you because it was collected illegally.
You have the right to say no to a warrantless home search.
Your brother, whom you have not seen in a couple of years, is in town for Thanksgiving and asks if he can stay with you. Without thinking anything of it, you let him crash on your couch. After Thanksgiving Day, he takes off on a road trip with a friend, letting you know that he expects to return after the weekend. Late Sunday night, your doorbell rings unexpectedly, and you find three police officers at your front door. They explain, to your shock, that your brother is part of a gang, involved in illegal weapons sales, that he has been on the run from the police for several months, and that they finally tracked him to your house. They do not show you a warrant but ask if they can look around your house for anything he may have left or hidden at your house before he left for his trip. What do you say?
Most people faced with this situation would readily say “yes” out of shock. But the Fourth amendment gives you the right to say “no” because a person’s home “is his castle.”9 The Fourth Amendment grants an individual’s home the highest expectation of privacy.10 Therefore, you have the right against unreasonable government intrusion in your home.
If the police are using deception to obtain your consent or enter your home without your permission, any evidence collected will likely be inadmissible in court.11 However, if the police have probable cause, such as evidence suggesting your brother hid some of the weapons he intends to sell at your home, or there are other exigent circumstances, the police can proceed with the search regardless of your consent.12 If the officers collect evidence under these exceptions, then the evidence is obtained legally and can be used against you in court.
You have the right to say no to a warrantless cellphone search.
Police officers lawfully arrest a co-worker for selling illegal drugs. At the time of arrest, the co-worker is carrying her cell phone which contains information of gang violence she previously helped organize. The officers ask the woman if she can look through her cell phone and she says, “yes” because she is already under arrest and thinks the officer legally has access to her phone.
When arrested, most people think the police have the right of access to all of their personal information. But this is simply not true. Under the Fourth Amendment, people have a right to privacy in their “effects.”13 Cell phones fall under this category.14 However, for cellphones that use facial identification or fingerprint recognizing to unlock the phone, officers may not require a search warrant because your facial and fingerprint patterns are not private information. On the other hand, if a cellphone is locked with a numeric or a pattern passcode—where the code or information is only stored in your mind—you have the right to say “no” and require the officers to provide a warrant for the search or utilize an exception to a warrantless search.15
If the woman in the example above said “no,” and the police searched her phone without her permission, subsequently using that information to charge her, she can argue that the information obtained from her cell phone is inadmissible or illegal.16 In short, even though you are under arrest, officers cannot go through your cell phone without a warrant, probable cause, or other exigent circumstances.
Why should I object if I have nothing to hide?
Prior to the American Revolution, the colonists were threatened by “general warrants.”17 These general warrants gave law enforcement, essentially the British government, the ability to have virtually unlimited access to a person’s life.18 Since general warrants did not have any limits, law enforcement had the license “to search whatever they pleased, no matter the reason,” without consequences.19 As a result, the colonists had no security or guarantee of peace since at any time, they could be searched, and evidence incriminating them of unlawful activity could be used against them even if they were innocent and the evidence was entirely circumstantial.20
When drafting the U.S. Constitution, the Founders viewed every man’s right to privacy as a fundamental right that should be free of unreasonable government intrusion. Concerned that the newly formed federal government could expand its powers and oppress people much like they had experienced under British rule, the Fourth Amendment, notably the right against unreasonable searches and seizures, was added to address this issue.21
Given America’s history, the main reason to object to a warrantless search is to protect oneself. If you consent to a warrantless search, any evidence found can be used to incriminate you even if you are innocent.22 If you object to a warrantless search, the officer has to either obtain a warrant through a judge or find an exception to a warrantless search.23 This also gives you time to contact an attorney if you have incriminating evidence in your premise or possession.24 Another reason to object or refuse warrantless searches is to limit governmental overreach.25 Your objection essentially checks the actions of governmental power and ensures that you have more control over your privacy. Furthermore, objections to warrantless searches limits discrimination thus providing a fair justice system.26
For these reasons, say “no” to warrantless searches and seizures because it is your constitutional right and the failure to object or say “no” can lead to the admission of illegal evidence which may be used against you in the court of law. Learn the rights that give you these protections and ask yourself whether the officer is acting reasonably. If the officer disregards your objections and continues the search, do not stand in his or her way to ensure everyone’s safety. Any evidence collected under unreasonable circumstances such as without a warrant or probable cause may be inadmissible in the court of law.
1 Barry Friedman and Orin Kerr, Common Interpretation: The Fourth Amendment, National Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-iv/interps/121 (“This right limits the power of the police to seize and search people, their property, and their homes.”).
2 U.S. Const. amend. IV.
4 Kentucky v. King, 563 U.S. 452 (2011).
5 Illinois v. Rodriguez, 497 U.S. 177 (1990).
6 Illinois v. Gates, 462 U.S. 213 (1983).
7 Graham v. Connor, 490 U.S. 386 (1989).
8 See U.S. Const. amend. IV.
9 Minnesota v. Carter, 525 U.S. 83 (1998).
10 Kyllo v. United States, 533 U.S. 27 (2001).
11 Weeks v. United States, 232 U.S. 383 (1914).
12 Exceptions to the Warrant Requirement, LawShelf, https://lawshelf.com/coursewarecontentview/exceptions-to-the-warrant-requirement/.
13 Daniel Woislaw, How the Fourth Amendment can protect us from becoming a surveillance state, Pacific Legal Foundation (Dec. 23, 2019), https://pacificlegal.org/how-the-fourth-amendment-can-protect-us-from-becoming-a-surveillance-state/.
15 Riley v. California, 573 U.S. 373 (2014).
16 Michael Tarleton, Fruit of the Poisonous Tree: Illegally Obtained Evidence, Nolo, https://www.nolo.com/legal-encyclopedia/fruit-the-poisonous-tree.html.
20 Supra. note 1.
22 Mike Worgul, Why You Shouldn’t Agree to Warrantless Searches, Worgul, Sarna & Ness (Dec. 9, 2014), https://www.pittsburghcriminalattorney.com/why-you-shouldnt-agree-to-warrantless-searches/.
25 Supra. note 1.