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If the government gets evidence from an illegal search, a judge can prevent them from using it. Lawyers call that suppression of evidence. A search, with or without a search warrant, could be illegal by violating the Fourth Amendment, or other law. These laws limit government’s search and seizure power.
But despite the people’s efforts to limit this government power, police and other government officials work to expand their power to search. Here we will provide a summary of the law of illegal searches in Minnesota.
Probable cause alone is not enough for a lawful search under the 4th Amendment. The Fourth Amendment requires probable cause, *plus* either a Search Warrant or an exception to the warrant requirement.
The Fourth Amendment
“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.”
Fourth Amendment, United States Constitution
The Fourth Amendment lays out the people’s right to be secure against searches, without a search warrant. And the search warrant must be justified by a sworn statement, credibly claiming reasonable cause to suspect a crime, with narrow, specific persons or things to be searched.
“Statutes authorizing unreasonable searches were the core concern of the Framers of the Fourth Amendment.”
Justice Sandra Day O’Conner, dissenting, ILLINOIS v. KRULL, 480 U.S. 340 1987
Both the United States and Minnesota Constitutions prohibit the state from conducting unreasonable searches or seizures. U.S. Const. Amend. IV; Minn. Const. Art. I, § 10; State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). Warrantless searches are presumed unreasonable, and the state bears the burden of proving an exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). Unless the state proves “one of the well-delineated exceptions to the warrant requirement,” a seizure of items, or search of person or property, are unconstitutional.
Exceptions to Warrant requirement
Court cases over time made exceptions to the general rule requiring a search warrant. These exceptions tend to be related to threshold issues, such as “what is a search?,” and “what is a seizure?”
For example the “plain view exception” applies when police see evidence of a crime in plain view. And this is an extension of the general legal principle, that if a any person can lawfully do a thing or be in a place, then so can a police officer.
In reality the so-called “exceptions” to the warrant requirement are not categorical, but rather simplifications. The pivotal issue in the law of illegal searches is whether, in the “totality of circumstances,” the government has a legally recognizable justification for violating the a person’s liberty.
The presumption is that it does not. The burden is on the government to justify its violation of “the right of the people to be secure in their persons, houses, papers, and effects.”
Article I, section 10, Minnesota Constitution
“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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”
Article I, section 10, Minnesota Constitution
Though the language of Article I, Sec. 10 is similar to that to the Fourth Amendment, it is not identical. And the Minnesota Supreme Court interprets the Minnesota Constitution (not the federal courts).
So, while court protection of the people’s rights should never be less that that guaranteed by the U.S. Constitution, the people of Minnesota can have a higher level of court protection under the Minnesota Constitution. An example is State v. Askerooth, 681 N.W.2d 353 (Minn. 2004) (article I, section 10, of the Minnesota Constitution requires an investigative stop to be reasonable in duration and scope.)
For more on the: Minnesota Constitution defenses.
No Right Unless a Remedy
Without a remedy, there is no right. If a judge refuses to enforce a supposed “right,” it is an illusion. This happens, sometimes called “harmless error” on appeal. But when it comes to illegal searches, and the law of search and seizure, we have two main types of legal remedies for illegal searches.
Exclusionary Rule: Judges in the 20th Century created “the exclusionary rule” as a way to enforce Constitutional rights against searches and seizures. It removes the incentive for government and police to violate the rights of the people, by depriving them of any benefit of their illegal behavior. This deterrence purpose in turn gives rise to exceptions to the exclusionary rule, in some circumstances.
Common law, statutory law: The legal remedy for a violation of common law or statutory law can be stronger, including complete suppression from evidence in a case.
“Persons, houses, papers, and effects”
Common search fact patterns center upon:
- Person’s body, clothing, possessions on person.
- Motor vehicle, and contents.
- House, home, office, real property and contents.
And these relate to personal boundaries, security, privacy, jurisdiction and trespass, in different contexts.
Person: illegal search
Before police or government searches a person, typically that person is “seized.” Many court cases discuss at just what point is a person “seized” for Fourth Amendment purposes.
Sometimes these analyses become overly categorical, missing the substance and intent of the Fourth Amendment. If the person, is not “seized” then the Fourth Amendment does not protect the person, the government argues.
What is a seizure? Typically a seizure involves a police officer invoking the power of the state to detain a person, even for a moment. Examples could include police approaching a car, stopping a pedestrian, taking a thing, or trying to get into a house. See: Illegal Stop by Police.
Arrest: Not every “seizure” is an “arrest.” But every arrest is a seizure. And a common categorical shorthand for a common “exception to the warrant requirement is “search incident to arrest.” So if the arrest was illegal, then what followed was presumably an illegal search.
Temporary, limited detention: But before any “arrest,” a police seizure of a person could be called a “brief, limited, detention.” This often includes a stop and frisk search by police, for weapons. A defense attorney can ask a judge to rule that seizure illegal, due to being too prolonged, or too intrusive.
For more on this, see our: Expansion of the Stop | Prolonged, Intrusive.
Motor vehicle: illegal search
Another misleading term is the categorical “automobile exception.” But there is no categorical “automobile exception” to the search warrant requirement. Instead, court must look at the totality of circumstances to decide whether a warrantless search of a motor vehicle was legally justifiable.
Police may not search an automobile based solely on “probable cause of criminal activity.” The so-called automobile exception is a convenient heuristic, but is misleading despite the frequent use of the term. Most automobile searches are justified by “exigency” – no time to get a search warrant since the driver could simply drive away and keep going (assuming there is a driver). Second most common is the inventory search (which can be attacked if police had no right to seize the car, etc.) But the heuristic term “automobile exception” is not accurate or true in all “totality of circumstances.”
For example, if police could have gotten a search warrant to search a motor vehicle, but did not, a judge might rule that search illegal, depending upon the circumstances, as in this case: Large Marijuana Case on I-94; Gallagher Wins Illegal Search.
House, home, office, real property
Search warrants are most frequently used when police search real property, like homes, offices, farms. When a defense attorney looks at a case with a search warrant, we look at several things to start.
One is the basis that a police officer presented the judge in the search warrant affidavit (or application). Sometimes police mislead the judge. And we also will compare the police search with what the warrant authorized. Sometimes the search was not authorized by any warrant, like in this case: Gallagher Gets Large Marijuana Grow Charges Dismissed; Search.
“The Fourth Amendment & the personal rights it secures have a long history. At the very core stands the right of a man to retreat into his own home & there be free from unreasonable governmental intrusion.”
Justice Potter Stewart, Silverman v U.S., 365 U.S. 505 (1961)
Other exceptions: illegal search
Judges write about many “exceptions” to the warrant requirement. These are generalizations about typical fact patterns in different contexts. But an all too common mistake is to attempt to use these as categorical exceptions, meaning once the facts fit the category, the Fourth Amendment does not apply. That is wrong.
Some of the other commonly mentioned “exceptions” to the search warrant requirement include:
- Consent search
- Exigency
- Automobile
- Inventory (of seized automobile)
- Emergency
- Incident to arrest
- Plain view
In each case, we need to look to the specific facts and circumstances, and analyze them in light of search and seizure law to know whether we have an illegal search.
Suppression motion: illegal search
If we have reason to believe that a search was illegal, we can file a motion asking the judge to suppress the evidence form the illegal search. That motion will normally be heard by a judge at a Contested Omnibus Hearing. If the judge agrees, the judge can sign an Order suppressing the illegal evidence, limiting the prosecutor’s use of it.
If all or enough evidence is suppressed before trial, some or all of the criminal charges may be dismissed. But even if suppression of illegal evidence does not result in pretrial dismissal, it can help the defense at trial.
Question? Call Attorney Thomas Gallagher, 612 333-1500
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