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    Search and Seizure: Understanding How Search and Seizure Rights Affect Your Criminal Case

    By Colorado Criminal Defense Lawyer – H. Michael Steinberg

    Basic Search and Seizure Guide  – Plain Talk Version Of The Law (Last updated: July 02, 2006)

    Introduction – The world of criminal defense law and procedure can be complex. What follows is a very basic guide to some of the concepts you may hear about.  I hope it is helpful to you.  H. Michael Steinberg

    What is a Search Anyway?

    A SEARCH is by definition an invasion of privacy. Prior to Katz v. U.S. (1967), privacy was defined in terms of the trespass doctrine, but since then, a “reasonable expectation of privacy” doctrine has prevailed. Only what people themselves deem “private” and what society recognizes as private are protected. The Fourth Amendment does NOT protect against all invasions of privacy; it only forbids unreasonable invasions of privacy; and in the almost 45 years since Katz, the Supreme Court has held steadfast to a presumption of unreasonableness whenever privacy expectations are violated in a warrantless search or surveillance situation.

    It is important to note that the issue of concern is privacy expectation, and not the actual intrusion (trespass), be it physical or electronic. In terms of Supreme Court jurisprudence, this means that a very strict interpretation of the Fourth Amendment is followed:

    The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     In Katz, the government argued that it could police itself and that good intentions should outweigh any constitutional precondition for always getting a warrant, but the Supreme Court rejected those arguments.

    However, there clearly are exceptions, such as consent, emergency, search incident to arrest, motor vehicle, and inventory, as well as special circumstances in fires and disasters. This article explores some of those exceptions.

    The Warrant Requirement

    Technically, the Fourth Amendment says that all searches are to be conducted under authority of a warrant (the warrant rule). Warrants can be issued to search premises (dwellings), vehicles, or persons. The Fourth Amendment also states that probable cause (the probable cause requirement) should form the basis of warrants, supported by oath or affirmation in the form of an affidavit.

    There are different definitions of probable cause, from what a person of reasonable caution or prudence would believe in connection with a crime or criminal offender to what would make a reasonable person to more probably than not believe a guilty rather than innocent interpretation of facts, hearsay, or a combination of the two. The trend is toward the “more probable than not” test.

    For example, in informant law, the Aguilar test (1964) was established approving anonymous informant tips if (a) it could be shown the informant was reliable, and (b) some underlying information could be provided to show how the informant reached the information in their tip.

    This two-pronged test was replaced by a “totality of circumstances” test in Illinois v. Gates (1983) in which a reviewing magistrate uses practical common-sense, given all the circumstances set forth in the affidavit, to decide if there is a fair probability that contraband or evidence of a crime will be found in a particular place.

    No Knock Warrants

    Warrants must be executed promptly and not usually at night or on Sundays unless otherwise stated. They also become “stale” or too old to use after about 90 days (federal procedures may or may not be similar in some states). So-called “no-knock warrants” can be issued if the “exigent circumstances” test is met; i.e., evidence can be easily destroyed or flushed, a hostage situation exists, and the case involves explosives, emergencies, danger to officers, or unusual circumstances.

    All warrants, not just no knock warrants, authorize the use of force to enter a dwelling if police are denied entrance or no one is there to admit them. The “demand and refusal” element of the “knock and announce” rule has been eliminated, however, as has the whole “knock and announce” exception since a 2006

    Warrant Descriptions Must Be Detailed And Accurate

    Supreme Court decision called Hudson v. Michigan which essentially held that the social costs of letting criminals go free on a technicality are greater than the costs to dignity and privacy. The warrant must include a street address and description of the location; e.g., 110 S. Main, a two-story white house. A warrant for one side of a duplex does not authorize search of the other side, and the same is true of apartments. A warrant must describe as fully as possible all the things to be looked for in connection with a crime that has been committed or is about to be committed. The descriptions must be specific; e.g., one black 21′ Panasonic TV, serial number 63412X. The described item(s) are usually provided in boilerplate fashion on the warrant form itself (with an indication to strike inapplicable paragraphs). Finally, a valid warrant must be signed by a judge.

    Search Warrants Must Be As Narrow As Possible

    The most important thing about searches is that their scope must be narrow. General, exploratory searches are unconstitutional, and no warrant should be used for anything having the appearance of a “fishing expedition.”

    What Is A Seizure?

    A SEIZURE is by definition the deprivation of liberty, or the enjoyment in exercising dominion or control over a thing, be it property or person. Police can temporarily seize private property for about 14 days (this varies from jurisdiction to jurisdiction), and usually hold it indefinitely if it is material evidence in a criminal case.

    Temporary seizure or detention of a person is allowed for shorter periods of time. Asset forfeiture laws apply to criminal cases, and among other things are intended to show that crime does not pay. While these are technically civil law procedures that exist on both federal and state levels, seized property can be auctioned off for money to fund the criminal justice system, or in some cases, used by the police departments themselves in operations; e.g., as an undercover vehicle.

    Seizure of Assets – Forfeiture Laws – RICO

    With asset forfeiture, the crime must fall under some version of a R.I.C.O. (Racketeer Influenced Corrupt Organization) Act, or be part of on ongoing criminal enterprise designed to be profitable, such as drug trafficking. In most cases, a person who has had their assets seized under forfeiture laws must make a showing of good cause why the property should be returned in civil court within 90 days.

    Understanding The Exclusionary Rule

    The EXCLUSIONARY RULE and common law time frames provide protection against unreasonable seizures. The purpose of the exclusionary rule (briefly, evidence illegally obtained cannot be legally admitted), first created by Weeks v. U.S. (1914) and made applicable to the states via Mapp v. Ohio (1961) is often misunderstood.

    It is NOT designed to protect the constitutional rights of suspects, but to penalize police and deter police misconduct. The exclusionary rule is a judicial mandate designed to help professionalize the police; it’s a social experiment, not a guarantee of constitutional safeguards. It’s a rather harsh rule, the reasoning being that it is better to let some of the guilty go free so that the majority of people would benefit from more thorough and professional police work.

    The Court appears to be waiting for social science to answer when this goal is reached, but it represents an under-researched topic in in justice studies, if indeed, it is researchable at all. The exclusionary rule also subsumes the FRUIT OF THE POISONOUS TREE DOCTRINE, first established in Silverthorne Lumber Co. v. U.S. (1920). According to this

    doctrine, not only is evidence illegally seized inadmissible, but any evidence or testimony obtained later as a result of the illegally seized evidence is inadmissible. This has been somewhat weakened by the good faith exception (explained below), but it basically means that any secondary, incriminating facts or leads discovered later in a case from an earlier, illegal seizure are inadmissible.

    If the “tree” is tainted, the “fruits” are also tainted. This usually results in not enough evidence to go to trial. One loophole is the purged taint exception, which applies if the defendant broke the chain of evidence themself, and came forward with new evidence, like a spontaneous confession, about a related crime. Another loophole is the inevitable discovery doctrine (also explained below).

    What Are The EXCEPTIONS To Suppression Of The Evidence?

    For many reasons, not necessarily only because of harshness, there have evolved numerous EXCEPTIONS (precedents) to the warrant rule and the exclusionary rule. Often, these precedents are interrelated in actual police practice. These are listed below by their technical names in alphabetical order:

    Automobile Search Exception

    First established in Carroll v. U.S. (1925) as part of Prohibition-era laws allowing roadblocks and checkpoints. Later, amended to allow free and unfettered passage on public highways. Police can generally open luggage and parcels in the passenger compartment; a search of the trunk requires special justification. However, Chambers v. Moroney (1970) ruled that an automobile search need not be made immediately. All that is necessary in a probable cause stop is to confiscate the parked vehicle after the driver has been arrested, take it to headquarters, and do a complete inventory on its contents. Any and all evidence found in the vehicle can be legally seized. Inventory and search are technically different, but in practice, both are done at the same time. (See Moving Vehicle/Probable Cause Doctrine and Inventory Search Exception).

    Border Search Exception

    –the basic idea here is that special attention should be paid to a nation’s borders and certain transportation routes. For this reason, immigration points and international airports can search and seize (for as long as 16 hours) on the basis of reasonable suspicion rather than probable cause. Also allowed is “drug courier profiling” of suspicious persons that may be transporting contraband along a commonly used Interstate or airport for drug trafficking. Profiling stops have also been authorized for people who appear to be soliciting prostitutes.

    The Chimel Rule

    –briefly, a warrantless search is allowed if incidental (simultaneous) to a lawful arrest, i.e., serving an arrest warrant without a search warrant. Only the area under a suspect’s immediate control can be searched, and this can be for evidence that has nothing to do with the cause for arrest. Also a “protective sweep search” is appropriate for dwelling areas, such as closets or closed doors for hidden attackers.

    Comes from Chime/ v. California (1969), a case where police literally ransacked a house. Also applies to hot pursuit or chase situations where suspect can be taken back to show spot where weapon or drugs were discarded, but this more often involves a public safety exception to the Miranda rule. Strip searches (down to the underwear) can ONLY be done when the prisoner is in a secure facility. Vehicles used to transport prisoners MUST be searched prior and after transport in order to prove something was discarded during transport. Cavity searches can be done at booking, but are best left to medical personnel, but some departments allow officers to do them.

    Consent Search Exception

    -A person who possesses common authority or bas frequent access over the premises; e.g., girlfriend, landlord, etc. can authorize a consent search within limits (NOT the whole house) if their waiver of rights is voluntary (they understand it can be revoked at anytime during the search) and made intelligently (NOT just in acquiescence or mere submission to police authority). Many departments require signing a Miranda-type consent form. Silence, simple nodding of the head, or waving the police in an open door is NOT consent.

    Crime Scene Search Exception

    -Police have enormous powers regarding the securing of crime scenes. Depending upon jurisdiction, they can order people to move or not move about, “freeze” suspicious situations, and commandeer (immediately seize) property, vehicles, or residences for evidence, transport, or temporary headquarters. Force can also be used to prevent contamination of the scene. One of the more interesting legal restrictions at crime scenes and other searches is the elephant in a matchbox doctrine, which requires searchers consider the probable size and shape of the evidence they seek, since large objects cannot be concealed in tiny areas. Ignoring this doctrine usually results in leaving the place a shambles.

    The key case in regard to crime scene search exceptions is Mincey v. Arizona (1978), in which police held an exhaustive, intrusive, protracted 4-day search to retrieve evidence in connection with investigating the circumstances of an officer’s death. The Supreme Court found this unreasonable, not necessarily in terms of time, but because of the zeal which police departments express in investigating the death of one of their own. Overzealous investigation to convict a cop killer is unconstitutional, and likewise, there is no murder scene exception. However, the Supreme Court held that warrantless searches at a crime scene can be done if someone is in need of immediate aid or a killer is still on the premises. The Mincey decision has been upheld by subsequent case law (e.g., Thompson v. Louisiana 1984; Michigan v. Clifford 1984; and Flippo v. West Virginia 1999), with Clifford sending the message that even arson cases do not provide a license to roam freely.

    Emergency Situation Exception

    -The letter of the law regarding warrants need not be applied strictly in situations with probable cause and no time to secure a warrant; e.g., shots being fired or a person screaming. Applies to searches that must be conducted immediately, and has been extended to include fingernail scrapings, blood samples, and urine tests. A danger to life, or danger of escape should exist, but most often, used in situations where delay would cause destruction or removal of evidence.

    There are also scenarios involving a terrorist attack or other disasters, and in such situations, it is likely the rules governing crime scene exceptions would apply. This means that overzealousness must be avoided, and therefore, some police departments have policies (not necessarily constitutionally required, but based on preventing conflict of interest) prohibiting first responders from being part of the investigative search team. Such first responders would be assigned to crowd control or other peripheral duties, for example.

    A warrantless investigation under emergency conditions would basically meet constitutional requirements if it was conducted with the primary purposes of ascertaining the cause, bringing the emergency under control, and keeping the response within the scope of what is necessary to address the emergency. Legal reasoning recognizes, however, that exigent circumstances exist in almost every emergency.

    For example, the courts have concluded that “emergency situations involving endangerment to life fall squarely within the EXIGENT CIRCUMSTANCES exception” (U.S. v. Holloway 2002), that there is “no absolute test for determining whether exigent circumstances are present because such a determination ultimately depends on the unique facts of each case” (U.S. v. Gray 1999), and that the specific facts of each case are usually “so various that no template is likely to produce sounder results than examining the totality of circumstances” (Brigham City v. Stuart 2006). Nevertheless, police departments are under some obligation to ensure that policies and procedures are in place, ensuring that adequate and proper guidance is provided to officers on what constitutes an emergency or exigent circumstance.

    Good Faith Doctrine

    -originally emerged as exception to exclusionary rule and is now the most rapidly expanding exception. It was first applied when police executed what they believed to be valid warrants later overturned on technical grounds due to fault of the issuing magistrate in assessing probable cause and nexus (the connection between PC and accused’ participation in elements of criminal offense).

    Based on two cases in 1984, U.S. v. Leon and Massachusetts v. Sheppard, the doctrine holds that if police are truly unaware they are violating someone’s 4th Amendment rights, the evidence can be admitted anyway. Has been extended somewhat to apply in situations where police acting “under color of law” due to existence of a specific state statute; e.g., safety inspections, proceeding with a warrantless search because application of the exclusionary rule in these situations does not coincide with purpose (deterrence) of the exclusionary rule.

    Inevitable Discovery Doctrine

    – designed as a built-in loophole to the fruit of the poisonous tree doctrine. Based on Nix v. Williams (1984), the doctrine holds that if illegally obtained evidence would in all likelihood eventually have been discovered anyway, it is admissible. For example, if police obtained an illegal confession and cooperation from a suspect in locating where bodies were buried, AND police were conducting their own independent search of an area for bodies but had given up, the help of the suspect in locating the bodies would be a natural extension of proper police methods as if the police had never terminated their search. Although the confession is illegal, the dead bodies are admissible evidence. The reasoning behind inevitable discovery (not to be confused with inadvertent discovery in Plain View Doctrine) is to restore police to the same position they would have been if no police error or misconduct had occurred.

    Inventory Search Exception

    -When police take custody of property, proper inventory procedures allow searches to protect the owner’s property, protect the department from disputes and claims, protect the police and public from danger (check for bombs, etc.), and to determine the owner’s identity. Also called Impoundment Doctrine because anytime police confiscate something that has been abandoned, is blocking traffic, is illegally parked, or has been left without a driver after the driver has been arrested (see Automobile Exception), police are usually required by law or regulation to search the contents while impounding it. Colorado v. Burtine (1987) does not give police carte blanche authority to search all impounded objects indiscriminately, only when a specific inventory is justified.

    Moving Vehicle/Probable Cause Doctrine

    – an automobile, truck, van, motorhome, boat, airplane or other movable object can be searched IF there is (a) probable cause (b) the vehicle is moving or about to be moved, and (c) a warrant cannot be readily obtained. Every part of the vehicle can be searched, including closed containers in the trunk, although special justification is needed for trunks. Diminished expectations of privacy are assumed to exist with moving vehicles.

    Probable cause can be easily established via police dogs, who have a sense of smell six million times greater than that of a human.

    Open Fields Doctrine

    – only houses, papers, effects and “curtilage” are protected; open fields even if amounting to trespass are NOT. Areas outside the “curtilage” can be searched; e.g., a barn 50 yards away. “Curtilage” may or may not be a fence. It depends on (a) proximity to house (b) whether area is within an enclosure surrounding the home (c) the uses to which the area is put, and (d) any steps taken to protect the area from observation. For example, a garbage or trash can placed out on the curb is NOT protected; a garbage or trash can on the porch needs a warrant to be searched. From Oliver v. U.S. (1984) and upheld in U.S. v. Dunn (1992). Abandoned effects, wastepaper baskets, and public places, including bathroom stalls, are NOT protected.

    Plain View Doctrine

    –this refers to police use of their senses: sight, hearing, smell, taste, and touch. Anything detected by these means does NOT have Fourth Amendment protection if officers are lawfully present when they detect something by these means. A number of subdoctrines have developed, such as “plain feel”, “plain smell”, and “plain hearing”, and the current controversy is whether electronic aids for the senses constitute a search or should be part of the Plain View Doctrine.

    In general, evidence of ANOTHER crime that is immediately observable without a search is seizable. In 1971, the standard was “inadvertent discovery” (not necessarily looking for anything incriminating; e.g., looking inside car to read VIN number or fix fuse and seeing weapon under dashboard or car seat) but due to courts being unable to define “inadvertent discovery”, this standard was abolished in Horton v. California (1990) and replaced with a three-prong test: (a) officer engaged in lawful activity at the time; (b) the object’s incriminating character was immediately apparent and not concealed, and (c) the officer had lawful access to the object and it was discovered accidentally. For example, in a roadside stop, the driver opens a glove box to get their registration or proof of insurance, and the officer views what in his or her experience looks like a container of drugs or a weapon.

    Private Individual Search Exception

    -If the police come upon evidence obtained by employees of a private carrier, such as Federal Express, bicycle delivery, rental car or limousine service (to name a few), or private security (hotel detectives, department store security guards, etc.) no warrant is required and the evidence is admissible. Such private individuals are not subject to the same Fourth Amendment provisions as government officials. This exception applies only if the private search for evidence is made without the knowledge or participation of a government agent.

    This exception applies to residences as well as public places. If, for example, a girlfriend makes a private inspection of her boyfriend’s closet, finds stolen guns, and turns them over to police, the evidence is admissible against the boyfriend. Where controversy exists is in the definition of “government officials”. Certain quasi-public police departments (i.e., port police, transit police) are allowed to do warrantless searches, and the Court has held that probation officers, although government officials for most purposes, have the right to justify searches under less than probable cause.

    Stop & Frisk Rule (Terry v. Ohio)

    – a frisk or patdown of the outer clothing is NOT technically a search, but whenever police restrain a person’s freedom to walk away, a seizure has occurred. To frisk, police must have “reasonable suspicion” (not merely a can’t-put-into-words hunch) and the frisk must be for weapons only, unless under the plain feel exception. Furtive movements, inappropriate attire, carrying suspicious objects, vague answers to questions, refusal to identify oneself, and appearing to be out of place are all grounds for articulable suspicion. This has been extended to roadside stops, luggage, suspicion of narcotics possession (in many cases, also requiring a trained dog to establish probable cause). Often produces evidence other than weapons that come into “plain view”, demonstrating the interrelationships among these precedents.

    Student Search Exception

    -The Court has maintained that schools, in order to maintain an atmosphere of learning, must have eased restrictions on search by school officials. The standard is reasonableness under all circumstances, which means that there must be reason to believe a search would turn up evidence, the procedure must be related to the search for evidence (and not for disciplinary purposes), and the search is not intrusive nor discriminatory on the basis of age, sex, or race. Numerous cases upheld, but New Jersey v. T.L.O. (1985) is significant.

    INTERNET RESOURCES Civil Liberties Guide to Search and Seizure

    FBI Law Enforcement Bulletin article on Search and Seizure

    LII Supreme Court Decisions

    Nolo’s Understanding Search and Seizure Law


    Bloom, R. (2003). Searches, Seizures, and Warrants. Westport, CT: Greenwood.

    Bridegam, M. & Marzilli, A. (Eds.) (2004). Search and Seizure. NY: Chelsea House Publishers.

    Creamer, S. (1980). The Law of Arrest, Search and Seizure. NY: Holt.

    Dash, S. (2004). The Intruders: Unreasonable Search and Seizure from King John to John Ashcroft. New Brunswick, NJ: Rutgers Univ. Press.

    McWhirter, D. (1994). Search, Seizure, and Privacy. Phoenix: Oryx Press.

    Rutledge, D. (2001). Search and Seizure Handbook: For Law Officers. Belmont, CA: Wadsworth.

    Wetterer, C. (1998). The Fourth Amendment: Search and Seizure. Berkeley Heights, NJ: Enslow

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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