3 Borderline Illegal Searches by Police

Aditi Mukherji, JD

Not all illegal searches by police are black and white. The contours of a person’s Fourth Amendment protections against an illegal search and seizure are muddled by constantly evolving rules that largely hinge on the specific facts of a case.

Here are three specific situations that especially hover on the boundary of illegal searches:

  1. When a Terry pat becomes a Terry search. Police can “stop and frisk” — that is, detain and pat-down — a person, without a warrant, as long as they have reasonable suspicion based on “articulable facts” that a suspect is engaging in criminal activity, armed, and poses a risk to officer safety. But this kind of frisk, called a Terry frisk, is limited to the outside of a person’s clothing. An invasive pat-down (into pockets and clothing) requires stronger evidence of concealed weapons or contraband. Without such evidence, reaching inside a person’s pocket or shirt to look for weapons or contraband may constitute an illegal search.
  2. When a car is searched after a traffic arrest without a warrant or consent. In general, officers are allowed to perform searches incident to an arrest. However, the search of a car must be related to the arrest. That means there can’t be a legitimate car search incident to arrest when there’s no more evidence to be had of the crime. For example, when you’re arrested for driving on a suspended license, police will not find any more evidence of your lack of a valid license by searching your vehicle. In such situations, police typically need a warrant or your consent to search your car, although exceptions do exist.
  3. When officers read texts or emails in a seized phone or computer without a warrant. In Illinois, your phone can be searched without a warrant when you’re arrested. But the law is still in flux nationwide as warrantless cell phone searches are highly controversial. In fact, it’s such a hot-button topic that the U.S. Supreme Court may soon weigh in on the issue via the cases United States v. Wurie and Riley v. California.

If you’re in a “borderline” search situation, you may want to consult a criminal defense lawyer for more specifically tailored advice.

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3 Borderline Illegal Searches by Police