The Fourth Amendment Prohibits Unreasonable Police Searches

Lakeland, FL (Law Firm Newswire) June 4, 2014 – Whether or not a police search is legal depends on the facts of the case.

“The Fourth Amendment bans police from making unreasonable searches of people’s personal possessions, their homes and the accused. However, whether searching a suspected criminal is legal depends on the facts of the case,” outlines Thomas Grajek, a criminal defense attorney in Lakeland, Florida.

Should the search be illegal, any evidence collected during the search may not be used. Over the last few years, since the advent of the smartphones, criminal searches involving e-devices and cell and smartphones have become a highly controversial issue.

If an accused gives permission for the police to search their person or property, the officer may seize any evidence discovered. Where the search becomes controversial is if an officer sees an individual walking down the street, after coming out of a known stash house. That individual is using a smartphone and the officer suspects the person may be involved in selling drugs. The officer stops the person and asks to check text messages on the phone. “If you agree to let the police search your phone, the search is legal,” Grajek adds.

When property is involved, criminal searches generally must have a warrant, based on the police presenting evidence to a judge that may convince them there is reason to believe there is evidence of a crime at that location. The reason provided to the judge to obtain a warrant is referred to as probable cause. Once a warrant is approved, the police may legally conduct a search without a suspect’s permission. Warrants may be issued for e-devices, cellphones, cars, homes and personal property.

It is sometimes possible to search without a warrant and the search is legal. For example, the police may search an individual arrested for drug charges, carrying weapons or harbouring illegal goods. “Some states allow a search of a cellphone or other mobile devices belonging to an arrested suspect. Police may also conduct a search of a car or home without a warrant if they believe evidence may be destroyed, prior to obtaining a warrant,” says Grajek.

The law relating to searching cellphones and other e-devices is uncertain. Courts have made various rulings on whether or not police may search mobile devices or data stored on a computer. For instance, the California Supreme Court ruled police may download text messages from the phone of an person under arrest. “Conversely, the U.S. Supreme Court has ruled police need a warrant before putting a GPS device on a suspect’s vehicle in their driveway,” said Grajek.