“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

 

The Fourth Amendment to the Constitution of the United States and Article 2, Section 30 of the Oklahoma Constitution protect against unreasonable searches and seizures of a person and a person’s property.  In order to conduct a search, the police must have probable cause and generally, a search warrant is required in order for the police to search.  When law enforcement conducts a search without a warrant, the search is per se unreasonable.  This means there is a presumption that the search was unreasonable and the burden is on the government to demonstrate that the search was reasonable and not illegal.  You should always contact an Oklahoma criminal lawyer if the police have executed a search warrant against you or a loved one.  An Oklahoma criminal defense attorney can determine whether a search conducted by the government was an illegal search and seizure and whether the evidence seized from that search can be suppressed. 

 

There are several exceptions to the warrant requirement in Oklahoma criminal law including search incident to arrest, the automobile exception, plain view, open fields doctrine, consent, stop and frisk (also known as a “Terry stop”), hot pursuit, exigent circumstances, border searches, and school searches.  Each of the listed exceptions are discussed below.

 

Search Incident to a Lawful Arrest:  The rationale behind this exception is that a person who has been arrested may destroy evidence or use some type of concealed weapon against the arresting officer.  The Supreme Court of the United States articulated this rule in Chimel v. California, 395 U.S. 752 (1969).  The Court held it was reasonable for law enforcement to search an arrestee for evidence or weapons.  In order for a search incident to arrest to be lawful, the arrest itself must be lawful.  This means if a person is arrested without a warrant or without probable cause and incriminating evidence is discovered after the arrest, that evidence cannot be used against the arrestee. 

 

Automobile Exception:  The United States Supreme Court has stated individuals have a reduced expectation of privacy in vehicles and because vehicles are “readily mobile” it is not practical to require police to obtain a search warrant for a car.  If the police have reasonable suspicion to believe that a crime has been committed, they can initiate a traffic stop.  Reasonable suspicion can be nothing more than the driver’s failure to use a turn signal when changing lanes or not wearing a seat belt.  If the initial traffic stop is valid, and the police develop additional probable cause to believe that a crime has been committed, the vehicle can (and will) be searched without a warrant.  This does not mean that the police can simply search a car because of a traffic violation.  An officer spotting a weapon in plain view is adequate probable cause for a search.  The Oklahoma Court of Criminal Appeals stated in Lozoya v. State, 1996 OK CR 55,  932 P.2d 22, that the smell of marijuana gives police probable cause to search the vehicle for contraband.

 

Plain View Exception:  The police can conduct a warrantless search if they are lawfully present where they can see contraband or instrumentalities of a crime in plain sight or plain view.  For example, if the police have a valid reason to be in your home (I am sure you did not give the police consent to conduct a search of your home!) and an officer spots drugs on your kitchen table while lawfully in our home, there is no need for the police to obtain a search warrant.  The search is valid.  By the same token, if the police stop a motorist simply to issue a traffic ticket for speeding and the officer sees marijuana in the floor board of the back seat (the motorist did not do a very good job of hiding the pot under the seat), no search warrant is needed.  The search is valid.  In both situations, the drugs were in plain view and cannot be suppressed.

 

Open Fields Doctrine:  The open fields doctrine is related to the plain view exception.  The Supreme Court of the United States has stated that citizens do not have a reasonable expectation of privacy in open fields and the 4th Amendment protection of persons, houses, papers, and effects does not extend to an open field.  If marihuana plants are discovered in an open field by police, the evidence is in plain view, and the owner of the field(s) has no reasonable expectation of privacy, so the evidence cannot be suppressed, even if the police were TRESSPASSING in the field.  Open fields must be distinguished from curtilage.  Curtilage is defined as the area that immediately surrounds a home.  Unlike open fields, there is a reasonable expectation of privacy in curtilage.  If law enforcement officers conduct a search of the curtilage around your house without a search warrant, any evidence they find may be subject to suppression as the fruits of an illegal search.  The rules of law and the nuances surrounding curtilage are complex.  If the police have conducted a search of the curtilage of your home and discovered evidence of a crime, it is important that you consult with an Oklahoma criminal defense attorney so he or she can evaluate the specific facts of your case and advise you about your legal defenses and options.

 

Consent:  The police do NOT have to tell people that they have a right to refuse a search of their car, their home, and/or their person.  If a person gives voluntary and intelligent consent to search, the police do not need a warrant and any evidence found cannot be suppressed.  The police will frequently tell suspects that they will just go get a search warrant if the suspect will not consent to the search.  NEVER consent to the search!  Make the police get a warrant.  If you consent to the search, you are waiving valuable constitutional rights.  Ask any Oklahoma criminal defense attorney if you should consent to a search and the answer 99.9% of the time will be a resounding NO!  If the police claim that they have a warrant and actually do not, this makes any consent given invalid.  One issue that arises in consent to search cases is who actually has authority to consent to a search.  If two or more people live in the same house, either tenant can give consent to search the house, but one resident cannot give consent for the police to search an area under the exclusive control (such as a bedroom) of the other resident.

 

Stop and Frisk:  In the landmark case of Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court of the United States ruled that, in certain circumstances, the police are permitted to conduct a warrantless “pat down” search of an individual with less than probable cause in order to ascertain whether or not an individual is carrying a weapon.  The police must have reasonable suspicion to believe that “criminal activity is afoot” and the police must be able to articulate specific facts that led them to believe the person searched was armed and dangerous.  A mere hunch or an officer’s “gut feeling” that someone is armed is simply not enough to justify a “Terry Stop.”  A Terry Stop must be limited in scope and last no longer than is necessary to confirm or dispel the officer’s reasonable suspicion.

 

Hot Pursuit:  The hot pursuit exception to the warrant requirement allows the police to seize any incriminating evidence that comes into view during the pursuit.  The best story I have ever about the hot pursuit doctrine was told by Professor Charles Whitebread about a client he defended when he first began practicing law.  The client was sitting in his home minding his own business, albeit he had a considerable stash of marijuana sitting on his coffee table, when a suspect who was fleeing the police ran through the front door of the client’s house and continued running through the house to the back door.  The police followed the fleeing suspect into the client’s home and immediately saw the marijuana sitting on the table.  The police abandoned the chase of the fleeing suspect and instead, arrested Professor Whitebread’s client for possession of marijuana.  Professor Whitebread apparently fought to have the marijuana suppressed, but the court ruled that even though the police were not in pursuit of Whitebread’s client, the hot pursuit doctrine was still applicable and the judge refused to suppress the evidence against the client.     

 

Exigent Circumstances:  Exigent circumstances, also called emergency circumstances, allow police officers to conduct a warrantless search if there is imminent public danger to life or property, evidence is likely to be destroyed, or a suspect may escape in the time that it would take for officers to go before a judge and get a search warrant.  A common example of exigent circumstances is when police respond to a domestic violence complaint and enter a residence in response to the domestic violence call and discover illegal drugs in the residence. 

                 Border Searches:  A search of your person and your personal property can be conducted at the border without a search warrant and without reasonable suspicion.  In fact, United States Customs and Border Patrol agents can search anyone at random without ANY suspicion at all!  This includes a pat down search of your person and a search of your luggage.  However, agents cannot conduct a strip search or a body cavity search without reasonable suspicion that a crime has been committed.  The “border” also has a flexible definition.  The border can be the actual border, such as Mexico or Canada, or it can be what courts have termed as the “functional equivalent” of the border.  The “functional equivalent” of the border can be a city’s international airport such as J.F.K. in New York or O’Hare in Chicago that has incoming international flights.

Victim of an illegal search?  Contact an Oklahoma criminal lawyer today!