search and seizure

Gourley, Rehkemper & Lindholm PLC

Both the Iowa and United States Constitutions prohibit unreasonable searches and seizures by government officials.  This obviously begs the question of what is a “search” and what is a “seizure?” 

What is a search?

A search occurs anytime the government or agents of the government intrude upon an area where a person has a reasonable expectation of privacy.  A seizure occurs anytime that the government or agent of the government restrains a person’s freedom, either physically or indirectly.  The test is whether or not a reasonable person would feel free to go on about their business.  A seizure can also take place when the government takes possession or control of physical property or items.

Constitutional Right to Privacy

The constitution recognizes and protects our rights as citizens of this country and state to privacy in our individual’s affairs.  The government may not interfere with those rights by invading our privacy, taking our property, or otherwise interfering with our individual liberties without just cause.

Before the protections of the constitution attach the individual complaining of, or seeking to prevent, the governmental intrusion must first establish that he/she has a reasonable expectation of privacy in the place or thing to be searched or seized.  This will often times be established by ownership, right to occupancy, or other surrounding facts and circumstances that would make it reasonable for a person to claim that right to privacy.

If an expectation of privacy is established, the question then becomes whether or not the government intrusion or interference with the persons expectation of privacy was reasonable.  The general rule of thumb is that if law enforcement or another governmental entity or agent wants to intrude upon an individual’s right to privacy, they must first obtain a search warrant that is supported by probable cause and signed off on by a neutral and detached judge or magistrate.  This means that as a general rule, the police may not search a person’s car, house or personal property without a search warrant, nor may they restrain their freedom, require them to stop and talk to them without a warrant.  There are however exceptions and the law surrounding these exceptions is constantly evolving and changes.  The well-recognized exceptions to the warrant requirement are:

1. Reasonable Suspicion of Criminal Activity – Officers may seize and/or detain a person for a reasonable amount of time if they have a reasonable suspicion that the person is engaged in criminal activity.  They may NOT conduct a full blown search or pat-down but they can require the individual stop what he/she is doing and speak with them as part of their investigation.  If further information supports a reasonable believe that the person is armed and dangerous, a pat-down of the outerwear may be conducted.  A full-blown search or even going into pockets may not be done unless additional suspicion or information is obtained from the pat-down, i.e. feeling handgun in waistband.

2. Consent – an individual can always consent to governmental intrusion on their privacy.  This can either be explicit (written or verbal consent) or implicit (based upon actions and reactions)

3. Incident to Arrest – Law enforcement may search a person or the immediate “grab area” of a person incident to a lawful arrest.

4. Probable cause + Exigent Circumstances – if there is insufficient time to obtain a warrant, law enforcement may seize a person or search so long as they have probable cause to believe evidence of a crime will be discovered and a legitimate emergency situation exists justifying the immediate search.

5. Automobile Exception –  If the police have probable cause to believe that evidence of a crime will be discovered within a vehicle, the mobility of the vehicle, creates the emergency circumstance explained in number 4 and the police do not need to wait to obtain a warrant.

6. Inventory – The police may search a vehicle that they lawfully impound in order to conduct an inventory of its contents for “safe keeping.”  If this reveals evidence of criminal activity, that evidence is legally obtained so long as the impound was legal and the inventory procedures were proper and were complied with.

illegal search and seizure

A violation of the constitutional prohibitions against unreasonable searches and seizures can have a number of different effects.  First, if a person is charged with a criminal offense as a result of evidence found as a result of the illegal search or seizure, that evidence can be excluded from trial by a judge.  This is called suppression of evidence.  Second, any constitutional violation gives rise to a potential civil cause of action against the offending governmental entity.  While law suits are not appropriate in every situation, they have their time and place and courts are becoming more receptive to citizens vindicating constitutional violations through civil law suits.

Know Your Rights * Exercise Your Rights * Preserve Your Freedom

At Gourly, Rehkemper & Lindholm, you can count on our aggressiveness and determination to fight for you every step of the way.

free initial consultation

Free Consultation!
1-877 GRL-LAWS
1-877 475-5297

Contactan attorney at Gourley, Rehkemper & Lindholm as soon as possible. We offer a free consultation, and have flexible hours so that we can meet with you when you need us.

From our offices in Des Moines, Iowa, we give high-quality representation to people throughout the State of Iowa, including Polk, Warren, Dallas, Boone, Story, and Marion counties, and the cities of Des Moines, Ames, Indianola, Adel, Boone, Nevada, Urbandale, West Des Moines, Waukee, and Knoxville