By Maya Kushner, Esq. and Marc Emden, Esq.

The 4th Amendment to the US Constitution protects all of us from unreasonable searches and seizures. Guarding you from things like the police breaking down your door in the middle of the night, wire-tapping your phone, searching your car, or looking through your cell phone — all these scenarios have been featured for decades in the news, in movies, and in TV shows. However, the real rules of searches and seizures are much more complex than those portrayed in shows like Law & Order. In this article, our criminal defense lawyer will describe some of the fundamentals.


The requirement of obtaining a warrant prior to a search applies only if the search is conducted by the government, including government employees and agents, such as police officers. The 4th Amendment does not protect against actions by private individuals, such as your spouse or neighbor. A “search” occurs when the government violates an individual’s reasonable expectation of personal privacy, or expectation of privacy in a place or object.


Just like in the case of a search, in order for the 4th Amendment protections to apply, a person must have a reasonable expectation of privacy in the seized property. For example, a person has a high expectation of privacy in her own home, but a low expectation of privacy in the luggage she brings to the airport. A “seizure” of a place or object is any action by the government which limits your ability to use your property. Thus, if the police impound your car or prevent you from entering your house — a seizure has occurred, requiring a warrant. Note that a person can never have an expectation of privacy in illegal items. A “seizure” of a person occurs when a reasonable person in a similar situation would not feel free to leave.

The Exclusionary Rule

This is a very important rule which bars the government from using any evidence which it has obtained in violation of the US Constitution or another law. This means that the evidence cannot be used against the person charged with the crime neither during the investigation nor during any proceedings in court.

The Warrant Requirement

Generally, in order for a search or seizure to be lawful, police officers must first obtain a warrant. They must convince a judge or other judicial officer that they have probable cause to search and/or seize a specific person, place, or item.

Exceptions to the Warrant Requirement

This is an area that is constantly changing due to rulings by the US Supreme Court and, in Maryland, by the Court of Appeals. Over the years, the US Supreme Court has identified a number of situations where a warrant for the performance of a search or a seizure will not be required. There are few such exceptions, and they are well-defined by existing law. Below are some examples:

The Plain View Doctrine

This doctrine allows government agents to seize evidence that they find in plain sight. for example, you are pulled over for speeding, and while speaking with you the police officer observes marijuana in your cup-holder, he may seize that marijuana without obtaining a warrant first, and place you under arrest for possession of marijuana.

Search Incident to Arrest

A police officer may, without a warrant, search an individual she has arrested and seize any objects she finds on the arrestee or within his immediate vicinity. The courts created this exception to the warrant requirement to ensure officer safety and to prevent the destruction of evidence. The limitation in this warrant exception is that the police may only search the arrested person and his direct surroundings. This means that if you are arrested in your living room, for example, the police officers can search the couch where you were seated without obtaining a warrant, but cannot search the locked safe in your bedroom.

This exception to the warrant requirement has recently received national attention when the US Supreme Court decided that absent a warrant, a cell phone which the suspect was carrying may not be searched incident to arrest. EmdenLaw has discussed this latest development on the warrantless search of a seized cell phone in a separate article.

Consent Searches

If the police do not have a warrant to search a person or area, they may still do so lawfully if they obtain voluntary consent. Any person who lawfully owns or occupies a home or a car has the power to consent to a search of that area. Note, though, that a landlord may not give consent for the search of premises he is leasing to someone else.