The Fourth Amendment to the United States Constitution prohibits “unreasonable” searches and seizures by the government. Article I, Section 8 of the Pennsylvania Constitution may, under some circumstances, provide broader protections against unreasonable searches and seizures.

With certain exceptions, the police need to apply to a Judge for a warrant (permission) if they want to search your home or personal belongings. This search warrant must be based upon “probable cause” — the probability that evidence of a crime will be located in your home. The warrant cannot be based on speculation or conjecture and it must specifically identify the residence to be searched and the possible evidence to be found. A neutral and detached magistrate must issue the warrant after reviewing the facts submitted by the police.

An important thing to remember is that the police may get you to give up your protection against a search by tricking you into letting them search your things. A traditional way to do this during an automobile stop goes like this: "You don't have an drugs or weapons in your car do you?" (Of course, you answer "no.") "Then you don't mind if I look in your vehicle, do you?" ("Uh...no." is the usual answer.) At this point, you have just "waived" or given up any right you may have had to keep the police from searching your car (or house or purse, etc.). If the police want to search, it is almost always best to politely refuse ("No, I do not want you to search my car/house/etc.." ). This will possibly generate an adverse reaction from the officer along the lines of "Well...it's your funeral. You can wait here while we get a warrant. You're just making it harder on yourself. You got something to hide?" If they go ahead and search anyway, do not try to stop them. They will simply do it anyway and it may put you at risk of additional charges in addition to possible physical harm.

You may not think you have something to hide, but you might. Does anyone else use your car? Are there other people in your car ditching their bags of weed and bowls under your seat? Is it a car you borrowed from someone else? Do you really know what is in the glove compartment? If you're driving and if someone in the car ditches their drugs or drug paraphernalia in the car somewhere, in all likelihood you could be charged with the possession of that contraband under a theory of "constructive possession." You are almost always better off refusing to consent to the search.

The police also need a search warrant to search your motor vehicle, unless certain exceptions exist that would allow them to search without a warrant. Because automobiles are highly mobile and evidence in them can be quickly lost, an illegal warrantless search often occurs.

If you are arrested, the police will undoubtedly search your person. They do not need a search warrant to do so if they have lawfully arrested you. Any evidence of a crime or illegal contraband that they find during a search incident to your arrest will be used against you in court. If you are arrested while driving your car, the police must obtain a search warrant to search your vehicle unless certain circumstances exist.

The government cannot normally tap your telephone lines and listen to your conversations because that is considered an unreasonable search and seizure. However, if a law enforcement agency can show probable cause, they can obtain a wiretap order which is issued by a Judge and then proceed within the law.

Evidence obtained in an unreasonable search or seizure cannot be used against you in Court. This is known as the “exclusionary rule.” This and other related rules are complicated and they change constantly so it is important that you obtain legal counsel to determine if any of the evidence found by the police will be admitted in Court and thus used against you. Search and seizure is incredibly complex, and there are many, many legal and factual issues that can affect the outcome of a hearing to suppress evidence. This is an area where the services of an attorney would be extremely helpful.

If an illegal search might be part of your criminal case, you should call attorney Joseph N. Gothie, Esq., at (717) 848-8455 to make an appointment discuss your situation.

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