Seven Key Questions About Police Power of Search Under the Fourth Amendment


An incident in which the FBI was found to have bugged a court in California raises some disturbing questions about the powers of police search under the Fourth Amendment.

In May, the East Bay Express reported how the FBI hid surveillance devices around Alameda County Courthouse for almost a year, despite having no search warrant.

Search Warrant word cloud

The agency was investigating the activities of an Oakland landlord. The surveillance extended to hidden microphones in light fixtures on steps outside the courthouse which captured the conversations of those who showed up for foreclosure auctions. Microphones and cameras were also placed in parked cars next to the courthouse.

The recording of conversations falls under the Fourth Amendment, which makes “unreasonable searches and seizures,” unlawful. It also makes for some interesting questions about what is unreasonable as it has been a long time since the writing of the Constitution and technology has moved on since.

Our Austin criminal defense lawyers represent people charged with a range of federal offenses including white collar crimes and drug offenses in Texas. If agencies like the FBI are using unreasonable searches and seizures, it could have a bearing on the case.

Key Questions about Search under the Fourth Amendment

1 Do They Have a Warrant?

Searches with a warrant should be reasonable, but questions linger about their legitimacy. For a warrant to be legitimate, it requires the signature of a magistrate, a description of the premises to be searched and a description of the items to be seized.

2 When is a Search Without a Warrant Lawful?

There are some circumstances in which police can conduct searches without a warrant. They include at checkpoints like international borders and airports, during an emergency or a police chase or when contraband is on full view. Most dog sniffer searches don’t require a warrant. However, a warrant is needed to search a cell phone.

3 Can Police Read Text Messages?

Texas has some strong laws about protection when it comes to privacy. The case of State v. Granville ruled police cannot search an inmate’s cell phone when he is in custody. In 2010, the U.S. Supreme Court ducked the issue of whether police have a right to read your text message. If they don’t have a search warrant, they are on dubious legal ground.

4 When Can Police Search Your Home?

Some of the strongest Fourth Amendment protections concern the right to search a home. It offers considerable protection against an unwarranted search and the seizure of possessions. Unwarranted is not only without a warrant. Police must have an acceptable reason to search your home.

5 Can the Police Search Your Mail?

Your mail can be searched if police have a search warrant, and it’s based on probable cause. Mail is protected from searches without a warrant if it’s in your mailbox but not if it’s in your trash. Some other exceptions are detailed here by FindLaw.

6 Can You Be Lawfully Followed in Public?

If you are out in public, you don’t benefit from the same right for privacy as you have in your own body. Police can usually follow people without facing legal consequences if they are in a public place.

7 When Can Police Conduct Intimate Searches

A case in Irving Texas, in which two women were given cavity searches for littering in 2012, caused outcry and led to a lawsuit against troopers. These kinds of searches are usually only allowed when there is a reasonable suspicion that the suspect is hiding a weapon or contraband in the area that is searched. If a strip search or a cavity search is illegal, any evidence it reveals cannot be used in the prosecution of a suspect.

Our experienced Austin criminal defense attorneys are well versed in your Fourth Amendment rights and will fight against charges brought in violation of your rights. If you are suspicious about the lawfulness of the case against you, call us for a free consultation at (512) 399-2311.

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