Before we can really break down the implications of search and seizure law, we need to make sure that you understand exactly what it is. Search and seizure laws are often misunderstood and in Michigan, are the source of a great deal of controversy. So before we start unpacking this highly charged subject, let’s get everyone on the same page about this Constitutionally protected conduct. Nearly all discussions about the law of search and seizure begin by pointing out the Fourth Amendment to the U. S. Constitution. This 4th amendment right protects us from unreasonable search and seizure. It also sets out the requirement for the police to obtain search warrants from a “neutral and detached” court official based on probable cause.
What is a seizure under Michigan law?
Seizure is when the police detain you for a short period of time in order to determine if you were breaking the law. It is not the same as an arrest. However, in order to ‘seize’ you, an officer must first have reasonable suspicion that you were doing something illegal. This is different from arrest, where an officer is required to have probable cause to believe that you were breaking the law. Seizure can also mean that the police take possession of something such as illegal drugs, counterfeit money, a computer that is suspected of having evidence on it or a vehicle that is involved in a crime.
What is a search?
A search refers to law enforcement officers looking through your home, your vehicle, your computer or your body in order to find evidence of illegal activity. In most cases officers must have a warrant based on probable cause to execute a search. However, there are a number of situations where a search warrant isn’t required. They are as follows:
An officer can search your home, computer, vehicle, person or anything else without a warrant if they have your consent or the consent of a person that is otherwise authorized to give consent. Most people give their consent to the police because they are afraid and because the officer implies that getting the warrant will be easy, but their consent will make them ‘look better’ when the prosecutor gets involved.
If an officer asks your permission to search your house, car or body, you have the right to refuse. And we would strongly recommend that you do refuse! Never consent to a search without talking to your attorney first!
Search Incident to Arrest (SIA)
If the police arrest you, they have the right to search the area for either weapons or other people that might harm the officers while they are doing their duty. This is often called a “Wingspan” search.
This exception only has to do with cars. The motor vehicle exception allows an officer to search a vehicle without a search warrant as long as they have probable cause to believe that evidence or contraband is located inside the vehicle. The motor vehicle exception was first established by the United States Supreme Court in 1925, on the grounds that there is a lower expectation of privacy in motor vehicles due to the regulations under which they operate.
This exception also pertains to vehicles. If someone is arrested for having something illegal, like drugs or weapons in their vehicle, the police will tow the vehicle to the police station, where they will go through it piece-by-piece to see if there are any more illegal items hidden inside it. Police in Michigan sometimes do a similar kind of search and call it an inventory search.
Plain Smell/Plain View
Plain smell/plain view is exactly what it sounds like – if the officer can plainly see or smell something that indicates the presence of probable cause of criminal activity, the officer can investigate further without a warrant. Examples of this would be if an officer pulls you over in your car and smells marijuana on you. Another example would be an officer knocking on your door and you answer it, but the officer sees evidence of heroin or syringes on your coffee table.
This is the final exception being discussed in this part of our series, which refers to a number of possible scenarios. First, if an officer is pursuing a felon who flees into a house or building, that officer may enter as well and conduct a search. Another example of a situation where this exception applies is if an officer needs to administer emergency aid, they may enter the home or vehicle without a warrant. And finally, if an officer reasonably believes that there is destruction of evidence occurring in a home or vehicle, they may enter that home or vehicle.
Join us next time as we continue this discussion about search and seizure in Michigan, and what it means for you. Until then, if you or a loved one believe that your rights have been violated, or that an officer conducted an illegal search of your property, contact our experienced defense attorneys immediately at 866 766 5245. It is critical that your legal representative be notified and involved as quickly as possible, to ensure that your Fourth Amendment rights are protected. Our phones are answered 24/7, including on weekends and holidays. Don’t wait!