Understanding the Fourth Amendment and its Exceptions

By Lowry Law Firm | Posted on November 25, 2015

Are you facing drug charges? Consider the Fourth Amendment as a possible defense. Essentially, the Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment of the United States Constitution, protects an individual from unreasonable government search and seizure. What constitutes an unreasonable search and seizure is complex and often changes as courts decide new issues regarding its application.

It should initially be noted, however, that the Fourth Amendment only applies when a government agent is conducting the search. This is called state action requirement. Yet, there are several exceptions to this, for instance, when the government is particularly entwined with the action of the private parties that the complained about action can be fairly attributed to the government.

Reasonableness of the Search

For a government agent, such as a law enforcement officer, to search an individual’s car, home, or body (or any place of “reasonable expectation of privacy”), the search must be reasonable. For the search to be reasonable, the search must be based on probable cause, supported by a search warrant, or allowed by one of the exceptions to the search warrant requirement.

Therefore, contrary to popular belief, a search warrant is not always required. A search warrant is not required when the officer has probable cause that evidence exists in a particular location or on a particular person. Probable cause is found when apparent facts are discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution.

From here, there are many exceptions to the search warrant requirement. First, there is the plain view exception. This applies when (i) the seizing officer is in a position where he has a legal right to be; (ii) the incriminating character of the evidence must be immediately apparent; and (iii) the seizing officer has a lawful right of access to the object.

Second, there is the exigent circumstances exception, or when there is an emergency or dangerous situation that justifies a warrantless entry into a home. For instance, in trial for drug crimes, police that enter homes without a warrant may argue that they had an urgent need to enter the home without a search warrant. The police could argue that the possibility of losing the drug evidence was high because the defendant could have easily flushed the evidence down the toilet, for instance.

Third, there exists the automobile exception, or where there is probable cause that a vehicle contains fruits of a crime, instrument of a crime, contraband or other evidence.

Fourth, there exists the search incident to valid arrest exception. This exception allows police to perform a warrantless search of an arrested person, and the area within that person’s wingspan in the interest of officer safety, the prevention of escape and the destruction of evidence.

Lastly, there is the consent exception, when a person voluntarily and knowingly consents to a particular search.

Take Action!

In all, if you are facing drug charges, you should seek the assistance of an experienced defense attorney to attack the constitutionality of the search. If the search was not properly conducted, experienced Fort Lauderdale criminal law attorney Mark S. Lowry may be able to get the illegally seized evidence thrown out. Reach out to the office today for a consultation.