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  • Miranda Rights
  • Search and Seizure

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  • Right Against Self-Incrimination
  • Right to Counsel
  • Right to Speedy Jury Trial
  • "Double Jeopardy" Protections

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  • Right to Counsel - 1st Appeal
  • No Cruel & Unusual Punishment
  • More Information: Prisoners' Rights (Civil Rights Center)

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  • "Miranda" Rights and the Fifth Amendment
  • Focus on the Fifth: Miranda v. Arizona
  • U.S. Constitution: Fifth Amendment

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  • Police Questioning: When Miranda Warnings Are Required
  • Arrests and Interrogations FAQ

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  • The Miranda Case and the Right to Counsel
  • Invoking the Right to Counsel

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  • Stages of a Case: Arrest
  • Your Rights: Right to Counsel

"Miranda" Rights and the Fifth Amendment

What are the "Miranda" Rights?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:

1.      You have the right to remain silent.

2.      Anything you say can and will be used against you in a court of law.

3.      You have the right to an attorney.

4.      If you cannot afford an attorney, one will be appointed for you.

Read the historic U.S. Supreme Court decision: Miranda v. Arizona.

Fifth Amendment Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to "plead the Fifth".

Can a Criminal Defendant be Forced to Testify at Trial?

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant's lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged.

It is important to note that, once a defendant does take the stand and testify at trial, he or she cannot ordinarily choose to answer some questions but not others. Rather, the defendant's Fifth Amendment privilege is deemed waived through the act of testifying.

Does the Privilege Apply to Fingerprints and Blood Tests?

The Fifth Amendment right against self-incrimination does ensure that a defendant in a criminal case cannot be forced to testify and "be a witness against himself or herself". But it does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal case. In other words, a defendant may not refuse to submit to these procedures by asserting the Fifth Amendment privilege.

Who Can Claim the Fifth Amendment Privilege at Trial?

At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment privilege. Witnesses who are asked to testify can refuse to answer certain questions by asserting their Fifth Amendment rights, if to answer would implicate them in any type of criminal activity. Unlike defendants in a criminal case, who have the right not to take the witness stand at all, a witness may be forced to testify (by subpoena or other means) but may exercise his or her Fifth Amendment right by refusing to answer certain questions.

[Note: The Fifth Amendment also provides the basis for an individual's "Miranda" rights while in police custody.]

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  • The Right to Counsel Overview

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  • What the Sixth Amendment Guarantees
  • The Right to Adequate Representation

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  • Judicial Proceedings and Custodial Interrogation
  • Lineups and Other Identification Situations
  • Post-Conviction Proceedings

The Right to Counsel

A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means that a defendant has a constitutional right to be represented by an attorney during trial. It also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant.

Keep in mind that, while the right to counsel is discussed here in connection with a criminal trial, a suspect has the right to a lawyer at almost every important phase of the criminal process, typically from arrest through the first appeal after conviction.

How Does an Attorney Assist a Defendant in a Criminal Case?

The defense attorney's role is of paramount importance in almost every criminal case. While specific duties of an attorney vary depending on the nature of the charges and the case, key responsibilities of any criminal defense lawyer include:

·         Advising the defendant of his or her rights and explaining what to expect at different stages of the criminal process;

·         Ensuring that the defendant's constitutional rights are not violated through law enforcement conduct, or in court proceedings;

·         Negotiating a plea bargain with the government, on the defendant's behalf;

·         From arraignment to sentencing: investigating facts and evidence, cross-examining government witnesses, objecting to improper questions and evidence, and presenting any legal defenses.

To What Standards is a Criminal Defense Attorney Held?

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel" to criminal defendants. It doesn't matter whether the attorney is hired by the defendant or appointed by the government. However, questionable strategic choices made by an attorney (and even serious lawyer errors, in some instances) do not usually cause a conviction to be thrown out, unless it is clear that the attorney's incompetence affected the outcome of the case.

• The interrogation phase of a criminal investigation
• The trial itself
• Sentencing
• At least an initial appeal of any conviction

• A trial by a jury (in most cases)
• The jury to hear all of the witnesses and see all of the evidence
• Presence at the trial and while the jury is hearing the case
• The opportunity to see, hear, and confront the witnesses presenting the case against them
• The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear
• The chance to testify themselves should they choose to do so
• The option to refuse to testify
• Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial
• The right to cross-examine the witnesses giving testimony against them
• The right to compel the state to prove its case against them beyond a reasonable doubt

1. The defendant must show that his own lawyer's job performance was deficient. The defendant must prove that his counsel made errors so serious that the lawyer did not function as the counsel guaranteed the defendant by the Sixth Amendment.
2. The defendant must show that the deficient performance unfairly prejudiced the defense. The defendant must show that his lawyer's errors were so serious as to wholly deprive the defendant of a fair trial.

Judicial Proceedings and Custodial Interrogation

Generally, defendants are entitled to counsel from the time of their arraignment until the beginning of their trial. This is because the defendant's need for consultation, investigation, and preparation are critically important for a fair trial. The courts have gradually expanded this idea to the point that there is a legal concept of "a critical stage in a criminal proceeding" that indicates when a defendant must be represented by counsel.

Custodial Interrogation

Defendants who have been taken into custody and have invoked their Sixth Amendment right to counsel with respect to the offense for which they are being prosecuted may not later waive that right. However, defendants may waive their right under Miranda not to be questioned about unrelated and uncharged offenses.

What happens if the police violate the right to counsel? The remedy for violation of the Sixth Amendment rule is that any statements obtained from defendants under these circumstances will be excluded from the evidence at trial. There is one important exception to the Sixth Amendment exclusionary rule: evidence obtained from defendants held in custody that violates the Sixth Amendment may be used for the sole purpose of impeaching the defendants' testimony at trial.

1. for granting parole or probation
2. for revoking parole when parole was imposed after sentencing
3. for prison disciplinary hearings

Right to a Speedy Jury Trial

In addition to guaranteeing the right to an attorney, the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant a speedy trial by an "impartial jury." This means that a criminal defendant must be brought to trial for his or her alleged crimes within a reasonably short time after arrest, and that before being convicted of most crimes, the defendant has a constitutional right to be tried by a jury, which must find the defendant guilty "beyond a reasonable doubt."

What is a "Speedy" Trial?

A "speedy" trial basically means that the defendant is tried for the alleged crimes within a reasonable time after being arrested. Although most states have laws that set forth the time in which a trial must take place after charges are filed, often the issue of whether or not a trial is in fact "speedy" enough under the Sixth Amendment comes down to the circumstances of the case itself, and the reasons for any delays. In the most extreme situations, when a court determines that the delay between arrest and trial was unreasonable and prejudicial to the defendant, the court dismisses the case altogether.

What is the Jury's Role at Trial?

The Sixth Amendment guarantees a criminal defendant the right to be tried before an "impartial jury," representative of a cross-section of the community, which will consider the evidence against the defendant and decide whether to find him or her guilty of the crime(s) charged. In almost all states, 12 jurors must agree in order to find a defendant "guilty" or "not guilty." In such states, if the jury fails to reach a unanimous verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start all over again.

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  • The Concept of Double Jeopardy: Background
  • Reasons for Double Jeopardy Protection

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  • When Jeopardy Protection Applies: Only in Certain Proceedings
  • When Jeopardy Protections Take Hold
  • When Jeopardy Protection Ends: Acquittals, Dismissals, and More
  • What Constitutes the Same Offense

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  • Samples of State Court Decisions on Double Jeopardy

The Concept of Double Jeopardy: Background

The double jeopardy clause in the Fifth Amendment to the U. S. Constitution prohibits the government from prosecuting individuals more than one time for a single offense and from imposing more than one punishment for a single offense. It provides that "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Most state constitutions also guarantee this right to defendants appearing in state court. Even in states that do not expressly guarantee this right in their laws, the protection against double jeopardy must still be afforded to criminal defendants because the Fifth Amendment's Double Jeopardy Clause has been made applicable to state proceedings via the doctrine of incorporation.

Under this doctrine, the Supreme Court has ruled in a series of cases that the Due Process and Equal Protection Clauses of the Fourteenth Amendment guarantee to the citizens of every state the right to exercise certain fundamental liberties. These liberties include, but are not limited to, every liberty set forth in the Bill of Rights, except the Second Amendment right to bear arms, the Third Amendment right against quartering soldiers, the Seventh Amendment right to trial by jury in civil cases, and the Fifth Amendment right to indictment by grand jury.

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.

In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

The Concept of Double Jeopardy: Background

The American colonists were intimately familiar with the writings of Bracton, Coke, and Hale. Copies of Blackstone's Commentaries on English law were available in most of the colonies, and Blackstone's teachings were often quoted by the colonists in support of their claims that Parliament was exceeding its lawful authority.

The colonists were also familiar with how narrowly the right against double jeopardy had been defined in England. During the constitutional convention James Madison sought to enlarge the definition by making the right against double jeopardy applicable to all crimes not just capital felonies. Yet Madison's original draft of the Double Jeopardy Clause was perceived by some as too restrictive. It provided that "No person shall be subject ... to more than one punishment or one trial for the same offense" (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the language of the Fifth Amendment was modified to address this concern, the final version ratified by the states left other questions for judicial interpretation.

1. preventing the government from employing its superior resources to wear down and erroneously convict innocent persons;
2. protecting individuals from the financial, emotional, and social consequences of successive prosecutions;
3. preserving the finality and integrity of criminal proceedings, which would be compromised were the government allowed to arbitrarily ignore unsatisfactory outcomes;
4. restricting prosecutorial discretion over the charging process; and
5. eliminating judicial discretion to impose cumulative punishments that are otherwise not clearly prohibited by law.

When Jeopardy Protection Applies: Only in Certain Proceedings

Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against that individual for the same conduct are not prohibited. The text of the Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings threatening "life or limb." Nevertheless, the Supreme Court has established that the right against double jeopardy is not limited to capital crimes or corporeal punishment but extends to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe.

In Benton v. Maryland, 39 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.2d 707 (1969), the U. S. Supreme Court ruled that the Fifth Amendment's Double Jeopardy Clause is applicable to both state and federal proceedings. Prior to this ruling, an individual accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others, and frequently the level of protection offered was less than that offered under the federal Constitution. The Supreme Court said this was impermissible.

Relying on the doctrine of incorporation described above, the Court held that the right against double jeopardy is so important that each state must afford criminal defendants at least the same amount of protection from multiple prosecutions and punishments that is afforded by the federal government under the Fifth Amendment. Consequently, state courts cannot provide their residents with less protection against double jeopardy than is offered by federal courts, though variations in the level of protection offered can still arise when states offer their residents more protection under their state constitutional provisions than is provided under the federal Constitution.

The Supreme Court has also ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude subsequent civil proceedings or administrative proceedings (e.g., a license revocation hearing) against a person who has already been prosecuted for the same act or omission, even if that person is fined in the later civil or administrative proceeding. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn a distinction between criminal proceedings on the one hand and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve the purposes of deterrence and retribution. Civil and administrative proceedings are more remedial in nature. Civil proceedings, for example, seek to compensate injured persons for any losses they have suffered, while administrative proceedings can serve various remedial functions (e.g., license revocation) unrelated to deterrence or retribution. Because civil, administrative, and criminal proceedings serve different objectives, a single course of conduct can give rise to multiple trials in different types of courtrooms.

The multiple legal proceedings brought against O. J. (Orenthal James) Simpson over the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in criminal court, the families of the two victims filed three civil suits against him. The criminal proceedings had been instituted to punish Simpson, incarcerate him, and deter others from similar behavior. The civil suits were designed in part to make the victims' families whole by compensating them with money damages for the losses they suffered.

When Jeopardy Protections Take Hold

While the differences between civil, criminal, and administrative proceedings are not always perfectly clear, courts have done a much better job of explaining when jeopardy begins, or attaches. This question is crucial because any action taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against the same person for the same offense. Once jeopardy has attached, the full array of Fifth Amendment protections against multiple prosecutions and multiple punishments takes hold.

The U. S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, also called a bench trial, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the plea is accepted by the court.

When Jeopardy Protection Ends: Acquittals, Dismissals, and More

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates jeopardy and bars further prosecution with one exception. The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict can be reinstated without necessitating a second trial. A dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached, may not be appealed by the state.

Reprosecution is permitted and jeopardy continues against the defendant when a case is dismissed by the court at the defendant's request for reasons other than sufficiency of the evidence. For example, courts may dismiss a case when the defendant's right to a speedy trial has been denied by prosecutorial pretrial delay. The Supreme Court has held that no double jeopardy interest is triggered when defendants obtain a dismissal for reasons unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 [1978]).

Mistrials are granted when it has become impracticable or impossible to finish a case. Courts typically declare mistrials when jurors fail to unanimously reach a verdict. Like dismissals, mistrials declared at the defendant's behest will not terminate jeopardy or bar re-prosecution. Nor will a mistrial preclude re-prosecution when it is declared with the defendant's consent. Courts disagree whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution will be allowed only if the mistrial resulted from "manifest necessity," a standard more rigorous than "reasonably necessary" and less exacting than "absolutely necessary." A mistrial that could have been reasonably avoided will terminate jeopardy, but jeopardy will continue if the mistrial was unavoidable.

The manifest necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is not present when mistrials result from prosecutorial or judicial manipulation. In each of these cases, courts balance the defendant's interests in finality against society's interest in a fair and just legal system.

Every defendant has the right to at least one appeal after conviction. If the conviction is reversed on appeal for insufficient evidence, it is treated as an acquittal, and further prosecution is not permitted. However, a defendant may be re-prosecuted when the reversal is not based on lack of evidence. The grounds for such reversals include defective search warrants, unlawful seizure of evidence, and other so-called "technicalities." Retrials in these instances are justified by society's interest in punishing the guilty. Defendants' countervailing interests are subordinated when a conviction rendered by 12 jurors is overturned for reasons unrelated to guilt or innocence.

The interests of the accused are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was thrown out on appeal. Defendants who appeal their conviction assume the risk that a harsher sentence will be imposed during re-prosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of capital punishment.

What Constitutes the Same Offense

The final question courts must resolve in double jeopardy litigation is determining whether successive prosecutions or punishments are for the "same offense." Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to re-prosecute a defendant or impose multiple punishments.

At common law a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But over the last fifty years the proliferation of overlapping and related offenses has made it possible for the government to prosecute someone for several different crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that each offense has at least one mutually exclusive element. If any one offense is completely subsumed by another, such as a lesser included offense, the two offenses are deemed the same, and punishment is allowed only for one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But several other methods have been used by courts to determine whether successive prosecutions are for the same offense. Collateral estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men at a poker game when a jury had already acquitted him of robbing another one of the six. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, the government here was not allowed to rehearse its case and secure a conviction against a person already declared not guilty of essentially the same crime.

The "same transaction" analysis is another means by which courts determine whether successive prosecutions will survive constitutional scrutiny. It requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.

Both state and federal courts have employed the "actual evidence" test to preclude successive prosecutions for a single offense. Unlike Blockburger, which examines the statutory elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced by the prosecution at the second trial. Criminal offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same conduct" analysis the government is forbidden from twice prosecuting an individual for the same criminal behavior, regardless of the actual evidence introduced during trial and regardless of the statutory elements of the offense. For example, this analysis has been applied to prevent prosecuting someone for vehicular homicide resulting from drunk driving, when the defendant had been earlier convicted for driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. The U. S. Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.

What if the Police Fail to Advise Me of My Miranda Rights?

When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.

For example, suppose Dan is arrested and, without being read his Miranda rights, is questioned by police officers about a bank robbery. Unaware that he has the right to remain silent, Dan confesses to committing the robbery and tells the police that the money is buried in his backyard. Acting on this information, the police dig up the money. When Dan's attorney challenges the confession in court, the judge will likely find it unlawful. This means that, not only will the confession be thrown out of the case against Dan, but so will the money itself, because it was discovered solely as a result of the unlawful confession.

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  • "Search and Seizure" and the Fourth Amendment
  • Understanding Search and Seizure Law
  • Searches and Seizures FAQ

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  • Knowing When an Arrest is Legal
  • When the Fourth Amendment Applies
  • Search Warrants: What They Are and When They're Necessary
  • The Fourth Amendment Warrant Requirement
  • The "Reasonableness" Requirement
  • The Fourth Amendment and the "Exclusionary Rule"
  • U.S. Constitution: The Fourth Amendment
  • Sample State Court Decisions on "Search and Seizure"

• A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and
• Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.

• An individual is stopped for police questioning while walking down the street.
• An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk.
• An individual is arrested.
• Police officers enter an individual's house to place him or her under arrest.
• Police officers enter an individual's apartment to search for evidence of crime.
• Police officers enter a corporation's place of business to search for evidence of crime.
• Police officers confiscate an individual's vehicle or personal property and place it under police control.

Understanding Search and Seizure Law

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law. This article covers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.

The Fourth Amendment: Protecting Your Privacy

The Fourth Amendment to the U.S. Constitution reads as follows:

The search and seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.

The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:

• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
• the particular circumstances justify the search without a warrant first being issued.

When the Fourth Amendment Doesn't Protect You

The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

• Did the person actually expect some degree of privacy?
• Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?

A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head, and that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., No. 98-9349 (April 17, 2000).) Searches and Seizures FAQ

What's Below:

When is a police investigation considered a search?
How private is your property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
If a police officer pulls me over, can she frisk me or search my car?
If my car is towed and impounded, can the police search it?

When is a police investigation considered a search?

A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.

Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:

• Did the person expect some degree of privacy?
• Is the person's expectation reasonable-that is, one that society is willing to recognize?

For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.

On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.

How private is your property?

Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.

Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.

What is a search warrant?

A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.

As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.

What does it take to get a search warrant?

A judge will issue a search warrant after the police have convinced her that:

• it is more likely than not that a crime has taken place, and
• items connected to the crime are likely be found in a specified location on the property.

To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.

What are the police allowed to do after they obtain a search warrant?

Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:

• ensure their safety and the safety of others
• prevent the destruction of evidence
• discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
• hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.

For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.

Do the police always need a warrant to conduct a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant.

• Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
• Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
• Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
• Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
• "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.

Can my roommate-or my landlord-give the police permission to search my apartment?

The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.

Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.

If a police officer pulls me over, can she frisk me or search my car?

Yes, if the officer has a reasonable suspicion you are armed and dangerous, she can frisk (pat down) you when you are pulled over for a traffic violation. Similarly, if the officer reasonably suspects that you are involved in criminal activity she can also perform a pat down. Assuming the police have probable cause -- a reasonable basis or justification to believe that you or your passengers are involved in criminal activity -- they can search your car and objects belonging to passengers.

If my car is towed and impounded, can the police search it?

Yes. If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally or if the police recover your car after it is stolen.

The police are required, however, to follow fair and standardized procedures when they search your car and may not stop you and impound your car simply to perform a search.

• To establish probable cause, police officers must be able to point to objective factual circumstances that lead them to believe that a suspect committed a crime. A police officer can't establish probable cause by saying something like, "I just had a hunch that the defendant was a burglar."

• Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that enough factual information to constitute probable cause exists. But if a judge examines that same information and disagrees, then probable cause does not exist -- or did not exist, if the question is being decided after the arrest occurred.

• Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid if it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.

• what the judge thinks the Fourth Amendment's drafters meant by the term probable cause

• previous judges' interpretations in similar fact situations, and

• the judge's views about police rights v. defendants' rights.

When the Fourth Amendment Applies

Like the rest of the Bill of Rights, the Fourth Amendment originally only applied in federal court. However, in Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court ruled that the rights guaranteed by the text of the Fourth Amendment (sans the exclusionary rule to be discussed below) apply equally in state courts via the Fourteenth Amendment, which guarantees to the citizen of every state the right to due process and equal protection of the laws. The process by which the Supreme Court has made certain fundamental liberties protected by the Bill of Rights applicable to the states is known as the doctrine of incorporation.

Not every search and seizure that is scrutinized in state and federal court raises a Fourth Amendment issue. The Fourth Amendment only protects against searches and seizures conducted by the government or pursuant to governmental direction. Surveillance and investigatory actions taken by strictly private persons, such as private investigators, suspicious spouses, or nosey neighbors, are not governed by the Fourth Amendment. However, Fourth Amendment concerns do arise when those same actions are taken by a law enforcement official or a private person working in conjunction with law enforcement.

The Fourth Amendment does not apply even against governmental action unless defendants first establish that they had a reasonable expectation of privacy in the place to be searched or the thing to be seized. The Supreme Court has explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... " But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected (see Katz v. United States, 389 U.S. 347 [1967]).

Applying this principle, the Supreme Court has ruled that individuals generally maintain a reasonable expectation of privacy in their bodies, clothing, and personal belongings. Homeowners possess a privacy interest that extends inside their homes and in the curtilage immediately surrounding the outside of their homes, but not in the "open fields" and "wooded areas" extending beyond the curtilage (see Hester v. United States, 265 U.S. 57 [1924]). A business owner's expectation of privacy in commercial property is less than the privacy interest afforded to a private homeowner and is particularly attenuated in commercial property used in "closely regulated" industries (i.e., airports, railroads, restaurants, and liquor establishments), where business premises may be subject to regular administrative searches by state or federal agencies for the purpose of determining compliance with health, safety, or security regulations. Automobile owners have a reasonable expectation of privacy in the cars they own and drive, though the expectation of privacy is less than a homeowner's privacy interest in his or her home.

No expectation of privacy is maintained for property and personal effects held open to the public. Things visible in "plain view" for a person of ordinary and unenhanced vision are entitled to no expectation of privacy and thus no Fourth Amendment protection. Items lying in someone's backseat, growing in someone's outdoor garden, or discarded in someone's curb-side garbage all fall within this category. However, items seen only through enhanced surveillance, such as through high-powered or telescopic lenses, may be subject to the strictures of the Fourth Amendment. Public records, published phone numbers, and other matters readily accessible to the general public enjoy no expectation of privacy. Similarly, the Supreme Court has said that individuals do not possess an expectation of privacy in their personal characteristics (see United States v. Dionisio, 410 U.S. 1 [1973]). Thus, the police may require individuals to give handwriting and voice exemplars, as well as hair, blood, DNA, and fingerprint samples, without complying with the Fourth Amendment's requirements.

Finally, to raise a Fourth Amendment objection to a particular search or seizure, a person must have "standing" to do so. Standing in this context means that the rights guaranteed by the Fourth Amendment are personal and may not be asserted on behalf of others. Thus, a passenger may not generally object to a police search of the owner's car and a houseguest may not generally object to a search of the homeowner's premises. These rules can become murky, however, as when a houseguest is actually living with the homeowner or owns things stored on the owner's premises.

Search Warrants: What They Are and When They're Necessary

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M." and direct the police to search for and seize "cash, betting slips, record books, and every other means used in connection with placing bets on horses."

How Police Obtain Search Warrants

Police officers obtain search warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons (but not do a full search).

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.

Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area but not to clearly private areas such as an employee's clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.

Police may sometimes also make what's known as a "protective sweep" following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.

The Emergency Exception

As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:

• An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
• Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush it!" The officer arrests Eddie and seizes the stash.
• A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.

In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.

Allowing Police to Make a Warrantless Search

A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons if the officers have a "reasonable suspicion" that the occupants are involved in criminal activity and are reasonably concerned for their safety.

The Fourth Amendment Warrant Requirement

Once the Fourth Amendment applies to a particular search or seizure, the next question is under what circumstances is a warrant required. The Supreme Court has ruled that the Constitution expresses a preference for searches, seizures, and arrests conducted pursuant to a lawfully executed warrant (see Mincey v. Arizona, 437 U.S. 385 [1978]). A warrant is a written order signed by a court authorizing a law-enforcement officer to conduct a search, seizure, or arrest. Searches, seizures, and arrests performed without a valid warrant are deemed presumptively invalid, and any evidence seized without a warrant will be suppressed unless a court finds that the search was reasonable under the circumstances.

An application for a warrant must be supported by a sworn, detailed statement made by a law enforcement officer appearing before a neutral judge or magistrate. The Supreme Court has said that probable cause exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place (see Carroll v. United States, 267 U.S. 132 [1925]). Probable cause can be established by out-of-court statements made by reliable police informants, even though those statements cannot be tested by the magistrate. However, probable cause will not lie where the only evidence of criminal activity is an officer's affirmation of suspicion or belief (see Aguilar v. Texas, 378 U.S. 108 [1964]). On the other hand, an officer's subjective reason for making an arrest does not need to be the same criminal offense for which the facts indicate. (Devenpeck v. Alford, 543 U.S. 146 [2004]).

Probable cause will not lie unless the facts supporting the warrant are sworn by the officer as true to the best of his or her knowledge. The officer's oath can be written or oral, but the officer must typically swear that no knowing or intentionally false statement has been submitted in support of the warrant and that no statement has been made in reckless disregard of the truth. Inaccuracies due to an officer's negligence or innocent omission do not jeopardize a warrant's validity.

The Fourth Amendment requires not only that warrants be supported by probable cause offered by a sworn police officer, but it also requires that a warrant "particularly" describe the person or place to be searched or seized. Warrants must provide enough detail so that an officer with the warrant can ascertain with reasonable effort the persons and places identified in the warrant. For most residences a street address usually satisfies the particularity requirement, unless the warrant designates an apartment complex, hotel, or other multiple-unit building, in which case the warrant must describe the specific sub-unit to be searched. Warrants must describe individuals with sufficient particularity so that a person of average intelligence can distinguish them from others in the general population.

The magistrate before whom an officer applies for a warrant must be neutral and detached. This qualification means that the magistrate must be impartial and not a member of the "competitive enterprise" of law enforcement (see California v. Acevedo, 500 U.S. 565 [1991]). Thus, police officers, prosecutors, and attorney generals are disqualified from becoming a magistrate. States vary as to the requirements that candidates must possess before they will be considered qualified for the job of magistrate. Some states require that magistrates have an attorney's license, while others require only that their magistrates be literate.

The Fourth Amendment "Reasonableness" Requirement

Not every search, seizure, or arrest must be made pursuant to a lawfully executed warrant. The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment so long as it is reasonable under the circumstances. The exceptions made to the Fourth Amendment's warrant requirement reflect the Court's reluctance to unduly impede the job of law enforcement officials. The Court has attempted to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Always requiring police officers to take the time to complete a warrant application and locate and appear before a judge could result in the destruction of evidence, the disappearance of suspects and witnesses, or both. The circumstances under which a warrantless search, seizure, or arrest is deemed reasonable generally fall within seven categories.

1) No warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to the public generally do require a warrant, unless the officer is in "hot pursuit" of a fleeing felon (see Warden v. Hayden, 387 U.S. 294 [1967]). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

2) No warrant is required for searches incident to lawful arrest. If a police officer has made a lawful arrest, with or without a warrant, the Fourth Amendment permits the officer to conduct a search of the suspect's person, clothing, and all of the areas within the suspect's immediate reach. This kind of warrantless search is justified on grounds that it allows police officers to protect themselves from hidden weapons that might suddenly be wielded against them. Accordingly, officers are only permitted to seize items from the area in the immediate control of the arrestee.

3) Automobiles may be stopped if an officer possesses a reasonable and articulable suspicion that the motorist has violated a traffic law. Once the vehicle has pulled to the side of the road, the Fourth Amendment permits the officer to search the vehicle's interior, including the glove compartment. However, the trunk of a vehicle cannot be searched unless the officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity. But similar to a search incident to arrest, once a vehicle has been lawfully impounded, its contents may be inventoried without a warrant, including the contents of the trunk.

4) An officer who reasonably believes that criminal activity may be afoot in a public place is authorized to stop any person who is suspected of participating in that criminal activity and conduct a carefully limited search of the suspect's outer clothing for weapons that may be used against the officer (see Terry v. Ohio, 392 U.S. 1 [1968]). The officer may also ask for identification, but the suspect is under no obligation to produce it. However, A suspect's refusal to i