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Search and Seizure of Real Property

Search and Seizure of Real Property

An officer conducts a vehicle search.

Noor Z. Razzaq

There are many legal issues for law enforcement officers to contend with in regards to Search and Seizure of persons and property. In order to effectively understand search and seizure law and procedure, it’s important to have a basic understanding of related history and case law. Fundamental issues to consider when dealing with Search and Seizure include probable cause, search warrant exemptions, search warrants themselves, and the overall legality of police action in accordance with the Fourth Amendment of the Bill of Rights. This article will briefly discuss these concepts as well as case law concerning these various subjects.

One of the basic tenets of search and seizure in the United States is probable cause (PC), which is required prior to initiation of search or seizure by law enforcement officers. The modern definition of PC was established in 1989 by United States v. Hoyos, which held PC exists when “the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime” (Lectric Law Library, n.d.). U.S. v Dunn (1991) established the probable cause requirement regarding search and seizure to be that “a ‘man of reasonable caution’ must conclude that certain items may be contraband or stolen property or useful as evidence of a crime” (Lectric Law Library, n.d.). In accordance with the Fourth Amendment, probable cause must exist for all searches and seizures and must be approved by either the jurisdictional authority (e.g., local, state, federal government) or the person(s) who control the area being searched. This applies to any and all areas by which a given citizen has a ‘reasonable expectation of privacy’, whether it is a home, a rented hotel room, or a guest room in a private residence. However, there are exceptions to this rule.

While the courts generally prefer the use of a search warrant, the courts tend to allow a balance between individual rights and effective policing often negating the legal necessity to obtain a search warrant. Some of these exceptions to the search warrant requirement include search incident to arrest, search of potential accomplices and areas in the immediate vicinity of the arrestee, plain-view search, consent search, search due to exigent circumstances, plain feel search, open field search, and vehicle search. Search incident to arrest is self-explanatory and is conducted both for officer safety and to obtain evidence. Officers may also search any potential accomplices and areas in the immediate vicinity of the arrestee. Consent searches do not require a search warrant because of the simple nature of a warrant.

The concept behind search warrants is having permission to conduct the search. Permission can either be granted by the individual being searched or the courts. If you have consent from one, you inherently do not need consent from the other. The rule of thumb when dealing with consent searches of property is that the person who controls that property has a ‘reasonable expectation of privacy’ and must give permission prior to a search by law enforcement without a search warrant.

The ‘plain-view doctrine’ allows law enforcement to search and seize property if the officer sees it lying out in the open. The officer then must have PC to believe the item seen in plain view is illegal contraband, or stolen property, or evidence in a crime. ‘Exigent circumstances’ is the term used to legally articulate the concept of emergency conditions. This doctrine allows searches to be conducted by law enforcement to prevent the destruction of evidence, the escape of a suspect during hot pursuit, or to prevent physical harm to self or others. The final exception this article will discuss is the ‘vehicle exception’, which can be confusing if one is not familiar with the extensive case law which establishes the parameters of this category of warrantless search.

Under the motor vehicle exception, a lawful search requires two things: 1) the officer has PC that the vehicle contains evidence or contraband, and 2) that the officers conducting the search have lawful access to the vehicle in question (Regini, n.d.). The justification for warrantless vehicle searches has been a topic of much confusion due to the language of earlier Supreme Court decisions. In fact, both officers and prosecutors are often under the mistaken impression that the government must demonstrate the necessity to conduct a search warrant due to the impracticality of obtaining a judge’s approval before searching in order to defend the search in court. However, that particular legal requirement pertains to the ‘exigent circumstances’ exception rather than the ‘automobile’ exception. The main issue in regards to warrantless searches of vehicles is the reduced privacy of a vehicle.

The point of vehicle privacy was addressed in Pennsylvania v. LaBron 116 S. Ct. 2485 (1996). In this case, the U.S. Supreme Court reversed the Pennsylvania Supreme Court’s decision that previously stated the U.S. Constitution required police to obtain a warrant before searching a vehicle unless the police were able to demonstrate they had no time to do so. The Pennsylvania Supreme Court declared evidence obtained during a warrantless search of a vehicle pertaining to LaBron as inadmissible because they believed the officer had sufficient time to obtain a search warrant. The Pennsylvania Supreme Court’s stance on the matter was this search was a violation of LaBron’s Fourth Amendment’s rights. This interpretation of the Fourth Amendment was rejected by the U.S. Supreme Court due to the fact the vehicle was readily mobile and thereby had a reduced expectation of privacy (Regini, n.d.).

Over the years, rationale established in Carroll v. United States (1925) which stated the warrantless search of a vehicle is justified by the inherent mobility of that vehicle was disbanded. Now, the defense for the ‘vehicle exception’ has changed to the fact vehicles are “subject to extensive public regulation” and are very “public in nature” (Regini, n.d.). Arkansas v. Sanders, 442 U.S. 753 (1979) held that the vehicle exception applies if evidence enters the vehicle. However, if the evidence enters the evidence in a vehicle, the vehicle exception no longer applies and a search warrant must be obtained (e.g., locked container containing narcotics). This decision was overturned in California v. Acevedo, 500 U.S. 565 (1991).

In Acevedo, officers conducted surveillance on an apartment known to have drugs (Regini, n.d.). Officers watched as the defendant left the apartment with a brown paper bag after a short stay. The brown paper bag was close to the same size as the packages of marijuana suspected to be in the apartment. When officers stopped the vehicle down the road, they searched the vehicle and the paper bag where they discovered the marijuana. The Court upheld the warrantless search and concluded that “…it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers” (Regini, n.d.). The ruling which evolved from Acevedo simplified the scope of the warrantless search which is now “no broader or narrower than the scope if a search warrant had been obtained” (Regini, n.d.).

As has been briefly demonstrated in our exploration of the topic, the requirements for the search and seizure of any property can be complicated depending on the totality of the circumstances and determining the need for a search warrant can get confusing. Legal and procedural issues pertinent to the search of motor vehicles and homes require extensive preparation and knowledge of current case law before initiating a search. Officers must consider these elements and bear in mind that case law pertaining to this subject changes routinely. While it can be a daunting task to keep up with case law (as it changes constantly), police officers must do the best they can to ensure procedure is followed. Not only will this ensure the protection of citizens’ rights; it will ensure effective prosecution doesn’t lose a case on a technicality.


Lectric Law. (n.d.). Probable Cause. Retrieved July 17, 2006, from:

Regini, L.A., (n.d.). The Motor Vehicle Exception: When and Where to Search. Retrieved July 15, 2006, from:

Terry v. Ohio. (1968). Terry v. Ohio, 392 U.S. 1 (1968). Retrieved June 2, 2006 from:

Vontz. (2003). Substantive and Procedural Due Process. Retrieved June 20, 2006, from:

Copyright © 2008 by Noor Z. Razzaq. All rights reserved.

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