GUNFUNCO
Bearcat
I hope I'm not wading into something I'll regret later but here goes....
First let's define what a search actually is-
A search is made up of 2 elements- (1) a governmental intrusion into (2) an area with a reasonable expectation of privacy.
If the intrusion is not done by a governmental agent, even if there was an expectation of privacy no search under the 4th amendment has occurred.
Think like your neighbor stopped by and saw a meth lab in your kitchen, then called the cops. They could then obtain a search warrant on the information from your neighbor even though they never saw the meth lab.
If the intrusion occurred by a governmental agent but the area had no reasonable expectation of privacy, no search has occurred.
Think like- in the old days when marijuana was illegal everywhere... if someone was growing pot in the garden out back and the cop could see it from the road (even with binoculars) or from a neighbor that gave the cop permission to enter his yard to observe it-again no search has occurred.
What a person knowingly exposed to public view had no reasonable expectation of privacy so-no search had occurred.
Here I will stop and note- I'll have been retired for 20 years this Sept so there may be changes in case law that could affect the elements of some of these exceptions but in Michigan 20 years ago, the law regarding searches read something like this....
All searches with a valid signed search warrant were presumed to be legal. (if a search warrant was issued and signed by a magistrate or judge, there is an automatic presumption that the warrant is valid and even if it were found to be faulty later, the police were deemed to be acting lawfully and properly unless the defense could prove that the officer or person knowingly provided false info to obtain the warrant.)
All searches without a warrant were presumed to be illegal unless one of 10 recognized exemptions to the search warrant rule were determined to be valid.
The 10 exemptions to the search warrant rule were...
1) Border -anywhere within 100 miles of a US border, an agent of the government could stop and question and search persons and vehicles that were reasonably believed to be persons from another country that are likely to be engaged in unlawful acts-like - illegal alien, transporting illegal persons or contraband etc
2) Emergency- if the government agent reasonably believed an actual emergency was occurring, he could enter into an area with a reasonable expectation of privacy. Think like= a call with someone shot and the cops arrive and see a blood trail going into a home and no one answers the door- they kick the door thinking someone is likely injured and find a pile of cocaine on the table. they can seize the dope and charge the homeowner or person in possession there even if no one was in danger from the blood trail. OR they see smoke coming out of the eves or gutter area and believe the house is on fire, they can go in to check on people and they find dope or children in cages etc, they can seize and charge the persons responsible.
3) Administrative warrant- Think fire marshal comes to a business, and they won't let him in to check their required fire equipment, he can go get a warrant and force entry even though he had no evidence that anything illegal had occurred. OR think game warden goes to a taxidermist to do an inspection and they won't allow entry-same thing.
4) Consent-pretty simple- think police come to door and ask to search because someone told them the people had something illegal in the house, the police ask to come in and you let them-no warrant required even if they find something they weren't originally looking for.
5) Hot pursuit- think police are chasing a fugitive and he runs into a house of the person being chased, police chase him into the house and see scales and what looks like dope or other illegal items-they can seize and charge the person responsible even if it's not the fugitives home.
6) Plain view-think person has something illegal, and cops walk up to the door because they had a complaint of a dog running around loose from the home or some other reason to walk up and talk with the homeowner and see their dope or baby deer or something through the front window, they can go in and seize the illegal item because there would be a high likelihood that the homeowner would hide it before the cops could get a warrant and come back to seize it.
7) Probable cause and exigent circumstances- think cop stops a car and reasonably believes a law is being violated the evidence would likely be gone by the time they could get a warrant and return. Think cop stops a car and hears thumping sound coming from the trunk. If the driver won't allow search, cop can force the trunk to make sure someone is not tied up and kidnapped in the trunk or illegal alien being transported. Cop forces trunk finds a dog and a bunch of drugs, he can still seize the drugs and charge the occupants of the vehicle.
8) Inventory search- Think cop stops a drunk that crashed into another car. Driver arrested and going to jail and car being impounded. His department requires him to inventory vehicle to prevent claims of theft or other damage from police or wrecker company like theft of radio or tools in the trunk etc, Cop fills out his inventory sheet and opens the trunk and finds 10 kilos of cocaine in trunk. He can seize the dope and charge the driver.
9) Search subsequent to a lawful arrest- Think cop comes to door looking for a guy he knows that just beat up his wife and is supposed to be at the neighbors house. When he gets to the door he sees the guy sitting on the couch inside and goes in to grab him, cuffs him searches him and the area around where he was sitting. Cop find dope in his pocket and a stolen gun in the couch cushions near where he was sitting, Cop grabs dope and gun and charges him with both plus the domestic violence. If the cop sees dope and scales on the kitchen table, he can seize that and charge the neighbor as well.
10) Stop and Frisk- Think cop knows local big box stores have been broken into by 2 or 3 white males, goes by big box store at 2 am in chinatown and sees a couple white guys in the area behind the store but just walking around. Cops can stop and frisk them to ensure the cops safety while he investigates further. he finds illegal gun, bolt cutters and a set of lock picks and some needles on the guys, he can seize and charge for the drug paraphernalia, possession of burglar tools and illegal gun even though no warrant was issued.
This is just a bit of the laws that the cops learn about in the police academy and this is just a little bit of what the average cop needs to know before going out on the road to fight crime.
My folks used to say " don't go looking for trouble". After the police academy, they gave me a badge, gun and cuffs and said to go out and look for trouble.
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