Know your rights-- When can you be searched with and without a warrant???
There was debate about this in another post so I thought I'd post your rights here. As another poster said, a right unused is a right waisted.... Anyway, I'm not an attorney but I'm in my last month of my Jr Year studying this stuff and I hope to be in law school very soon :) So, obviously I don't know everything and have a lot to learn and I'm hoping knowledgeable people can add to this as well.
First thing First:
Reasonable Suspicion: Officer believes based on articulable facts that would be recognized by a person in a similar situation that it is more likely than not criminal activity is afoot and necessitates further investigation that will intrude on reasonable expectation of privacy.
What this means: Legal requirement for stop and brief on scene detainment, stop and frisk (outer garments ONLY removing object that feels like weapon) and search of containers in the trunk of a car (must have RS to do this- can't just pull you over and do it- they have to see you put something in there that looks criminal)
Probable Cause: An amount of reliable info indicating it is more likely than not evidence will be found in specific location or that specific person is guilty of crime.
What this means: Legal requirement for arrest, warrant, search
When can you be searched without a warrant?
1) Auto Search
2) Ext. Circumstances/ hot pursuit- this means risk of destruction of evidence, public safety, or you're fleeing.
3) Consent- must be given by home owner, of age, mental capacity
4) Search incident to arrest- make sure nothing to endanger the police and can only be within the "grab zone"- that means they can't search your house, only things you could reach for and use as weapon
5) Special needs beyond Law Enforcement: TSA (airplane) search at the subway etc
6) Stop and Frisk- That is the outer garments only (if you're wearing a jacket they can pat you down, only removing an object that feels like a weapon AND if there is RS)
Exceptions: Good Faith- If the officer got the warrant but there was a judicial error than its valid... Like the warrant has an honest mistake on it... Inevitable Discovery- Evidence may be used when it would have been found by police anyway....
Did you know our parents didn't have these rights? It wasn't until the 1960's that states began the full incorporation of due process and the 14th..... That means previous to this a police could come, search your home, without a warrant, they could question you and detain you without a warrant, even juveniles were denied basic rights beyond this... Crazy right????
Illegally obtained evidence or statements gathered in violation to the 4th, 5th, or 6th amendments will be excluded from subsequent criminal proceedings. This means that if the cops don't follow the correct steps above (given you don't give consent or something) then they can't use anything against you.
Reasonable expectation of privacy extends to people not places. So, you go into a telephone booth and make a call doing illegal things.. You can't be wiretapped without a warrant even though its in a public place without a warrant because by shutting those doors, you are then assuming an expectation of privacy.....
Reasonable expectation of privacy does NOT extend to your friends home if you aren't staying there for a short time. What this means is if you are bagging cocaine on the kitchen table and a cop looks though the blinds (violating the home owners expectation of privacy) YOU can be arrested- Not them. Don't act like an idiot just because its not your home.
Do you think that police are allowed to use thermal imaging devices and fly over a bunch of homes and "scan" them to see who has any unusual heat radiating from them indicating the growth of marijuana??? Answer: NO. They MUST HAVE A SEARCH WARRENT. This is one of the biggest myths out there, they can't randomly do it, if they do without a warrant, everything found after that is excluded from court (fairly new case, Kyllo v US)
Can an informant be used to gain a warrant?? This is a good question, informants are usually scum of the earth right? Working for the cops to get a deal?? Doesn't this violate pretty much everything (can't even face your accuser here!) Answer: YES. Cops can use informants because they attest to their reliability....
Did I cover everything???? LOL, at least it will give you something to think about :)