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When Is Our Privacy Safe From a Warrantless Police Search?

January 4, 2016 | Written by Dan Margolis

Thanks to the Bill of Rights, and the Fourth Amendment specifically, Americans are protected from “unreasonable searches and seizures” of their “persons, houses, papers and effects” by government agents. Note that the amendment does not prohibit all police searches and seizures. Instead, it constricts the ability of law enforcement to enter a person’s home or other property and take items to use as evidence against him or her.

Much of the time, this means that police must get a search warrant, at least when the person has a “legitimate expectation of privacy” regarding the place or object to be searched. Exceptions to the search warrant requirement exist, but an illegal government search can cause the judge to throw the resulting evidence out of court. This is because such evidence, tainted by the fact that it was obtained illegally, is considered to be “fruit of the poisonous tree.”

However, people do not have a legitimate expectation of privacy in every place or situation in which they happen to be. The U.S. Supreme Court set out a two-part test to determine whether a warrant should be required:

> Did the person whose property was searched expect the place or thing that was searched to be private?
> If so, was that person’s expectation objectively reasonable? That is, would other people generally agree that the place or thing should remain private?

For example, virtually everybody would agree that the inside of their home is a private area that should be protected from warrantless government intrusion. However, a home’s front lawn may not provide the occupant with the same reasonable expectation of privacy, so police may not need a warrant to take evidence from there.

The prosecution’s case often relies on evidence that was seized under legally questionable circumstances, so a defendant’s Fourth Amendment rights are often a very important issue. The defense attorney should be well-versed in Fourth Amendment law and how to keep fruit of the poisonous tree out of the trial.

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