Individuals have rights protected by both state laws as well as the United States Constitution when it comes to searches. Article I section 11 of the Michigan state legislature states that there must be a description of the property or premises to be searched, as well as probably cause, and an oath or affirmation taken prior to the search.
A search may occur when there is probable cause to believe that illegal activity has occurred. It may include searching a residence, a vehicle, a body, or other premises such as a business. A search warrant must be obtained prior to a search, as stated in the Fourth Amendment to the U.S. Constitution. There are, however, several exceptions to these requirements.
First, the Fourth Amendment also protects a citizen’s right to refuse a search. A law enforcement official who is attempting to execute a search without a warrant will, very likely, not inform you of this right, nor does he have a duty to. In a high stress situation where a search and seizure may occur, an individual will often feel intimated enough by a police presence that he or she will allow a search to occur without an existing warrant. Always exercise your right to refuse a search until a warrant has been attained! It is a common misconception that a refusal can be used against you in court.
Second, in the event of an arrest, an officer has the right to perform a search incident to arrest, or SIA, more commonly known as a “pat down.”
Third, an officer has the right to search a vehicle roadside without a warrant when pulled over. This is known as a vehicle exception. Another exception regarding vehicles is known as an administrative search. This is when the driver of a vehicle is arrested for drugs or other illegal substances in the vehicle, and the vehicle is towed to a police station for further search and processing. Any additional items found in these searches can be admitted as evidence to the court.
If a crime is being committed in plain view, or plain smell, an officer has the right to enter premises and investigate.
Finally, circumstances known as “exigent circumstances” occur when an officer must enter and search premises during an emergency situation. For example, if a criminal who is fleeing law enforcement runs into a house, then the officer may follow in pursuit.
Obviously, there are many ways in which an individual’s rights during an attempted search can be misconstrued. It is highly advisable that an experienced attorney be contacted immediately in these situations.
