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Introduction to a Search Under the 4th Amendment (podcast transcript)

Hi, I’m Tim Miller.  I’m a Legal Instructor at the Federal Law Enforcement Training Center here in Glynco, GA.  I have with me today Ms. Jennifer Solari.  Ms. Solari, how are you?

Solari:  I’m fine sir, how are you this morning?

Miller:  Doing good.  Ms. Solari and I intend to give you a road map through the 4th Amendment of the Constitution, particularly a 4th Amendment search.  In a series of podcasts, what we intend to do is give you a step-by-step approach through the 4th Amendment to the Constitution of the United States as it applies to searches.  So, what do you say we begin?

Solari:  Sounds great.

Miller:  What’s a search, Ms. Solari, under the 4th Amendment?

Solari:  A search occurs anytime the government intrudes into an area where someone has a reasonable expectation of privacy, or “REP.”

Miller:  Okay, I think I can understand that.  We’ll talk more about who government agents are and what a reasonable expectation of privacy is; but, for right now, I think I can assume that a government agent is a cop, would you agree?

Solari:  Yes.

Miller:  And that a place where somebody might have a reasonable expectation of privacy is, like, my house.

Solari:  Absolutely.

Miller:  So, if a cop intrudes into my house, does that trigger the 4th Amendment to the Constitution of the United States?

Solari:  Yes.

Miller:  Okay.  How about private parties?  You know, I’ve got a neighbor that lives next door to me; he’s a banker.  Ah, suppose he comes into my house without permission.  Does that trigger the 4th Amendment to the Constitution?

Solari:  Well, since it sounds like your neighbor doesn’t have any affiliation with the government, then he wouldn’t be a government agent and the 4th Amendment wouldn’t apply to him.  It really controls government action.

Miller:  Okay.  What if the government agent doesn’t intrude into a place where somebody has, again, this reasonable expectation of privacy?

Solari:  Well, if there is no intrusion, then the 4th Amendment wouldn’t apply.  It has to be an intrusion into that REP by the government agent.

Miller:  Okay, so, the government agent goes into a place where somebody has a reasonably expectation of privacy -- he’s triggered the 4th Amendment to the Constitution.  Right?

Solari:  Yes, sir.

Miller:  Okay. So, what?  What does the 4th Amendment require what a government agent intrudes into a place where one has a reasonable expectation of privacy?

Solari:  In its most general terms the 4th Amendment just requires that the intrusion by the government be reasonable.

Miller:  And, can you be a little more helpful?  What exactly do you mean by reasonable?

Solari:  In most cases, reasonable means that the government comes and intrudes into the REP with a warrant that is supported by probable cause.

Miller:  Okay.  So, if the government agent goes into a place where somebody has a reasonable expectation of privacy the courts are going to require that intrusion to be reasonable?

Solari:  Yes.

Miller:  And, to be reasonable the courts are generally going require a warrant supported by probable cause.

Solari:  Yes.

Miller:  Okay, well, again we’re going to talk about what probable cause is in a little bit later; but, I would assume that probable cause is, like, reason to believe that maybe evidence of a crime would be located in the place to be searched.  Do you agree?

Solari:  Yes.

Miller:  What if the agent doesn’t have probable cause?

Solari:  There are some exceptions to the probable cause requirement that would allow the government to make a limited intrusion into that REP -- there are a limited number of those the courts will allow; but, the government has to articulate facts to support the use of those exceptions and the burden will be on the government to explain why they didn’t have probable cause or a warrant.

Miller:  How about consent?  I have heard this thing about consent that if you have consent from the property owner to go inside the property that you wouldn’t need probable cause or a warrant.  Do you agree with that generally?

Solari:  Yes.

Miller:  All right.  Again, what happens if you have probable cause to believe that a place has evidence of a crime, but you don’t have a warrant?

Solari:  Normally, the courts would require a warrant to be able to intrude into that REP but there are, again, some limited exceptions to the warrant requirement -- but as I said earlier the burden is going to be on the government every time to explain why they went into that REP without a warrant -- why they were able to use a particular exception.

Miller:  Okay.  So, we’ve got a government agent going into a place where somebody has a reasonable expectation of privacy.  The search has to be reasonable.

Solari:  Yes.

Miller:  And to be reasonable, the courts are going to require a warrant supported by probable cause.

Solari:  In almost every instance, yes, unless you can use one of those limited exceptions.

Miller:  Okay.  Understand.  Is that it?  I mean, are the courts going to require anything else? I mean, how must the search be conducted?

Solari:  Well, as you stated, just to get into that REP, that has to be done reasonably by the government -- usually with a warrant supported by probable cause, but then conducting the search itself has to be done reasonably.

Miller:  Okay.  I’ve heard this thing called Knock and Announce.  Can you give me like a general  -- generally what is that?

Solari:  Sure, that is a statutory provision found in Title 18 of the United States Code and it is also, the courts have told us, a 4th Amendment provision -- it’s a 4th Amendment right.  It requires generally that before officers use force to enter a dwelling to execute an arrest or search warrant that they knock or somehow call attention to their presence, that they announce their authority and purpose - such as “police with an arrest warrant,” and then be denied entry before they actually use that force to enter the dwelling and execute their warrant.

Miller:  Okay.  Now, and I’ve got to be the devil’s advocate here a little bit.  What happens if the court finds the government search is not reasonable for some reason?

Solari:  Well, the court has actually created a remedy and we call it the exclusionary rule.  It’s not something you will find written in the 4th Amendment.  But, the court determined that for this rule of reasonableness there has to be a remedy in case law enforcement officers violate the rule of reasonableness, so they created the exclusionary rule which is essentially means that when officers run afoul of the 4th Amendment reasonableness requirement, the court will in most instances exclude any evidence that is obtained as a result of the 4th Amendment violation.  So it’s to deter that unlawful police conduct.

Miller:  Any exceptions to this exclusionary rule stuff?

Solari:  There are a few, but again only a few; such as good faith reliance on a warrant, impeachment of a defendant at trial, and there are couple others but are pretty difficult to support.

Miller:  So, we’ll talk about those a little bit later.  But, let me kind of sum this up.  First of all, we define what a search was under the 4th Amendment -- that it is a government intrusion in a place where somebody has a reasonable expectation of privacy.  And, once we’ve got that government intrusion, you’ve told me that the search has to be reasonable.  Agreed?

Solari:  Yes, sir.

Miller:  And to be reasonable, you’re going have to have a warrant supported by probable cause.

Solari:  Most often, yes.

Miller:  And, you know the other requirement is that the search is going to have to be executed reasonably, you’re going have to comply with Knock and Announce.  Agreed?

Solari:  Right.

Miller:  And if you don’t do those things, then this thing called the exclusionary rule kicks in. 

Solari:  Yes.

Miller:  Okay.  Well, I think I understand so far.  We’ll see you on the next PodCast.

Solari:  All right, sir.