Fourth Amendment Rights For Criminal Suspects Searched Without Warrant

If you have been subject to a search without a warrant in your home, car or person, it is important to understand your Fourth Amendment rights. A knowledgeable criminal defense lawyer from Berry Law in Omaha can help you file a motion to suppress illegally obtained evidence.


Police don’t need a warrant to search the body or areas that are within reach of someone who is arrested for a crime. This is known as a search incident to arrest.

Reasonable Suspicion

The Police are only allowed to search a person, place or vehicle when they have valid and reliable information. This could come from a number of channels, including an anonymous tip or personal observation on the part of a law enforcement officer. In the hierarchy of what gives officers the broadest authority to search, courts have ruled that probable cause and reasonable suspicion are at the top of the list.

Reasonable suspicion is more than a mere hunch, but it does not require as much evidence as probable cause, which is needed to obtain search and arrest warrants. Generally, the officer must be able to show that another reasonable officer would have the same suspicions in the circumstances of the situation. This standard allows officers to briefly detain someone for investigatory purposes, such as asking questions or frisking the outside of their clothing for weapons. It also allows the officer to search a suspect’s car and immediate area if they make an arrest, but this is a “search incident to arrest,” which must be limited to the immediate area of the car and its contents.

Some examples of reasonable suspicion might include a driver who changes lanes excessively or speeds up and slows down repeatedly, driving through a high crime area late at night, or parking in front of a closed business with four people inside. Police can also be justified in searching a suspect’s property when they have a warrant or if the officer has a good reason to believe that they are engaged in criminal activity, such as an anonymous tip about drug trafficking.

Probable Cause

Probable cause is the legal standard that must be met before police officers can search a suspect or arrest them. This is a higher standard than reasonable suspicion and requires more facts and clearer evidence of criminal activity.

Reasonable suspicion is the legal standard that police must meet in order to briefly detain a person and pat them down for weapons. This is also the level that they must reach in order to get a warrant to search a vehicle or home. If a judge or magistrate agrees that probable cause exists based on the totality of circumstances, they will grant the officer permission to conduct a search.

The reason that probable cause is required for a search and arrest is because the Fourth Amendment to the United States Constitution protects citizens from unreasonable government intrusion into their lives. In order for law enforcement officials to arrest you or search your property, they must have more than just a hunch that a crime has been committed.

This can be as simple as an officer observing a swerving driver. It could also be as complex as a long investigation into financial fraud or some other type of high-level crime. If you have been searched or arrested, a lawyer can help you challenge whether the probable cause was valid and ensure that any statements made were not in violation of your constitutional rights.

Search Incident to Arrest

When police arrest a person, they may search that person’s immediate area, or those areas under the arrestee’s control. A warrant is not required for a search incident to arrest, and any evidence found as a result of the search can be used in court. Police officers must be careful to limit the scope of a search incident to arrest to what is reasonable and necessary for the purpose of the search.

For example, suppose a police officer sees a suspect driving with a suspended license and stops them. The police officer might suggest that the suspect go home to take care of personal needs before going to jail. The suspect might decline the offer and ask friends or family to handle these matters on their behalf. Nevertheless, the police officer might search the home as a “search incident to the lawful arrest” if he or she has probable cause to believe that there is contraband or illegal activity in the house.

In Gant, the Supreme Court made some changes to the law surrounding searches incident to arrest. The Court now requires that the reaching distance for a search of items close to the person must be reasonably limited. Thus, a backpack on a nearby park bench cannot be searched as a search incident to the arrest of someone who is stopped for running a red light and arrested in his or her car.

Search Incident to Confinement

A warrantless search of a person or property is per se unreasonable absent one of a few well-established exceptions. The search incident to arrest exception permits officers to search a person or area within the suspect’s immediate control to prevent concealment and destruction of evidence. It is based on two historical justifications: officer safety and preservation of evidence.

In Gant, the Court decided to reframe this search-incident-to-arrest doctrine. The Court announced a new test that focused on whether an item was “within reaching distance of the arrestee.” The court held that a police search could not occur unless it was immediately after or within the same time frame as the actual custodial arrest.

This decision is significant because it narrows the scope of the search incident to arrest exception and it applies to personal items like cellphones. In addition, the court’s reasoning emphasizes that the need to preserve data on a cell phone is an important reason why it can be searched under this exception.

The Court also rejected Johnson’s argument that this change in the search-incident-to-arrest rule would invite pretextual and discriminatory searches. The Court noted that this was not the case in Gant, as the officer had probable cause to arrest the defendant and had already completed a pat-down search of his person. This was the same situation as other cases where the Court had upheld the validity of a search incident to arrest (e.g., Belton).