Your constitutional protection against an illegal search or seizure is actually a protection of your right to privacy against unauthorized intrusion by the government.
Thus, search and seizure questions must be framed in the context of personal privacy rights that are particular to each case.
In order to investigate criminal activity, law enforcement officers and government agents often “search and seize” people, their homes and belongings.
However, such investigations must adhere to strict constitutional constraints, or the searches and seizures will be found by the courts to be unreasonable and illegal.
The Fourth Amendment
The Fourth Amendment of the United States Constitution protects citizens against unreasonable searches and seizures where there is an “expectation of privacy.”
It also provides the requirements for searches and seizures, including the issuance of warrants based on probable cause.
Since your right to privacy is not absolute and only extends to certain areas (home, car or office, for example). A search or seizure is not always unreasonable in itself. For instance, a search and/or seizure is reasonable where there is probable cause to suspect criminal activity.
In these cases, warrants are usually obtained from a judge and a search proceeds without violating constitutional rights. Searches and seizures without warrants are also reasonable where special, or “exigent” circumstances exist.
A police officer may legally search premises and persons where the officer’s safety is at risk, the suspect might flee, other criminal acts may be committed, or in other urgent scenarios.
You can always consent to a search or decide to continue talking with the police in an effort to cooperate. In that case, you have waived your right to privacy and the protections of the Fourth Amendment. (This is not to say that you have waived any right to a Miranda warning, as discussed below).
When you consent to a search, any evidence that comes to light because of your consent is considered by the courts to have been legally obtained. However, your consent must be given freely and voluntarily. The U.S. Supreme Court has said that “consent that is the product of official intimidation or harassment is not consent at all.”
The USA PATRIOT Act (officially the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) was enacted as a result of the September 11, 2001, terrorist attacks on the United States. While the act is aimed at foreign terrorists, it affects all citizens’ Fourth Amendment rights. The USA PATRIOT Act is a complex piece of legislation that the courts are currently scrutinizing as constitutional challenges to it arise.
Although the Act may have no effect in typical searches and seizures, it cannot be overlooked, because it can be broadly applied. For instance, one provision of the USA PATRIOT Act expands law enforcement’s ability to execute searches and seizures, requiring that warrants be based only on the “significant purpose” of gathering foreign intelligence, rather than being based on probable cause. Additionally, warrants may be executed secretly on premises without notifying the owner until the search is completed. Thus, “sneak and peak” search warrants conducted under the USA PATRIOT Act do not allow an opportunity for quashing the warrant prior to its execution.
A search is an invasion of privacy. The U.S. Supreme Court has ruled that individuals have a “reasonable expectation of privacy” in legitimate places-areas that society agrees are private. In other words, an individual has a reasonable expectation of privacy in a place that a reasonable third-party would conclude is legitimately private. Additionally, an expectation of privacy requires that the individual believe he has a right to privacy in the searched premises.
I am living with my sister in her home. I pay her rent and have my own bedroom. Can she consent to my room being searched by the police?
No. You can reasonably expect privacy in your bedroom where you are a paying boarder and your bedroom is your residence.
I am staying with my parents for a couple of weeks. Can they allow the police to search the bedroom I am staying in?
No. Overnight guests have a legitimate expectation of privacy while staying in another’s house. The fact that you are a temporary guest does not dilute your protection against unreasonable searches.
SIDEBAR: Guests who do not plan to stay overnight in another person’s home are simply on the premises at the owner’s consent. Thus, there is no expectation of privacy if you are visiting a friend and are searched because the friend allowed police officers to enter her home. However, if you have been given a key to your friend’s home or apartment, then you may have an “expectation of privacy” in the premises you are visiting. The police would be required to obtain your consent or a warrant in order to search you in the above example.
While camping in a state park, rangers searched my tent for no reason. Do I have a right to privacy in this situation?
Yes, and the rangers violated that right, resulting in an unreasonable and illegal search. Although you were in a public state park out in the open, your tent is considered a “nonpublic” area in which you have a legitimate expectation of privacy.
SIDEBAR: If there were “exigent circumstances,” such as reports of screams from the tent, the search would be reasonable.
Do I have a right to privacy in a hotel room?
Only if you intend to, or have stayed overnight. Hotel guests who check in for the sole purpose of conducting a business transaction, in a matter of hours, are not protected against unreasonable searches and seizures.
Am I required to submit to blood tests if I have been pulled over on suspicion of driving while intoxicated?
The subject of blood, breath, urine aBeing a Vesselnd coordination tests in the context of Fourth
Amendment rights is large and complex. Furthermore, each state has different laws concerning alcohol and drug testing, making answers to even typical questions vary, depending on the state and the facts of the stop or arrest.
Most states have “implied consent” laws covering drivers that have been arrested or taken into custody. By “implied consent” it is meant that by driving in the state, you have consented to blood, breath or urine tests to determine if you have been drinking. In these states, you can be asked to undergo blood tests if a police officer has a reasonable belief that you were driving while intoxicated.
With that in mind, some general points to consider are:
- Telling you that you can be arrested and taken to jail is usually not coercion;
- An officer does not have a duty to tell you that you can refuse the test;
- The testing must usually occur incident to an arrest, i.e., directly before or after;
- Refusal to submit to testing can mean a night in jail and suspension of your license;
- The fact that you refused can be evidence at trial;
- You could be forced to submit to a test over your objections in some states; and
- Video-tapes made at the scene can be used at a trial.
A seizure can mean an individual’s freedom has been deprived, such as in an arrest situation, or that his belongings are no longer under his control. Persons are “seized” when the conduct of law enforcement officials results in the person believing he cannot leave the area or terminate the encounter. Usually, the conduct is manifested in physical restraint or force of some kind, but intimidation can also result in a seizure.
Where property or belongings are at issue, as in searches, an “expectation of privacy” must exist for the item that is seized. If an item is abandoned, for example, it can be legally seized, since it no longer has an owner who expects privacy.
Can I be lawfully detained or seized by law enforcement without an actual arrest being made?
Yes. You can be detained for a reasonable length of time if a police officer believes criminal activity has occurred, or may occur, with your involvement. An investigative detention or “Terry stop,” according to the U.S. Supreme Court, is considered to be justified when an officer has a mere “reasonable suspicion” of criminal activity. An arrest requires the higher standard of “probable cause,” i.e., the belief that, in all likelihood, you committed a crime.
If I am physically seized or detained by police officers, have I been arrested?
No. A seizure does not always result in an arrest. Officers are entitled to stop you if they reasonably suspect you are involved in criminal activity.
SIDEBAR: Additionally, if during a stop the officers have a reasonable suspicion that you are armed, they have the right to pat you down for weapons. This is a “stop and frisk,” and the courts have held that these limited weapons searches are not unreasonable under the Constitution.
Are vehicle stops at highway or road checkpoints considered to be seizures?
Yes. However, checkpoints are considered to be “reasonable” seizures that do not violate the Constitution if they are conducted according to established procedures and for a specific purpose. For example, a sobriety checkpoint screening all cars specifically for drunk drivers has been held constitutionally permissible.
TIP: You have the legal right to avoid a checkpoint if you can do so without violating a traffic law. If a U-turn is legal, you can make one; otherwise, you may be ticketed for a moving violation.
Are lengthy waits in line at customs checkpoints seizures?
No. The government is not unreasonably detaining a person when at entry points into the United States must wait to go through a routine customs process. Courts have found that a citizen’s right against government intrusion in these situations is outweighed by the government’s interest in protecting our borders.
Routine interrogation at borders and other entry points into the country does not violate Fourth Amendment protections. In fact, courts have held that it does not apply at all because border searches are, by their very nature, reasonable. Furthermore, it is a long-standing rule of law that expectations of privacy are minimal when you present yourself for entry into the United States.
TIP: Because the government’s interest in examining persons and property crossing the border is reasonable, your car, luggage, bags and your person can be searched. You and everyone with whom you are traveling may be questioned, including children. Answer truthfully and courteously. Have your bags, luggage and other items accessible to officials should they wish to search. Generally, your initial cooperation with border officials will quickly end any interrogation.
Are the police violating my right to privacy if they stop me and attempt to ask me questions?
No. As long you feel that you are free to terminate your encounter with the police, you have not been illegally “seized.” Law enforcement officers are free to approach you in a public place, without a basis for suspecting you of criminal activity, and ask you questions or talk to you.
How long can I be held in custody without an arrest?
Only as long as is reasonable for the officer to investigate her suspicion that you are involved in criminal activity. The investigation must proceed with due diligence and take no longer than necessary.
If you are stopped and the officer wants to frisk you for weapons, your detention should be short. For example, if you have been accused of shoplifting, you could be detained for the length of time it takes to search your bags, determine if you purchased the items and talk to the store clerks. Once the officer becomes aware that his suspicion of criminal activity has been extinguished, you must be released.
While riding the subway, the transit authority began questioning me and asked to search my bags. I consented because I felt intimidated, and drugs were found. Was this search illegal?
No. Law enforcement, which would include transit officers, can always ask to search your bags and, unless you have been coerced into giving your consent, you were not “seized” and the subsequent search is legal.
SIDEBAR: The courts have held that confining public spaces, which you cannot leave, such as a moving subway or bus, are no different from a city street in considering whether your consent was freely given. You may feel more intimidated in such a situation but, as the officer is not controlling the movement of the subway or bus, she has not “seized” you.
My business records have been seized. How do I get them back?
You file a petition asking the court to return your property, or ask for copies if the records are evidence in a case. If the court no longer needs the records, you should get them back once you show you are the rightful owner.
The police seized my vehicle and it is now up for auction. Do they have to give it back to me?
Not necessarily. Asset forfeiture laws allow law enforcement, in some cases, to auction off certain property (such as a vehicle, computer and even house) that was part of a criminal enterprise. You can go to court and petition for the return of your vehicle, but you must be able to show good cause.
SIDEBAR: “Contraband” is never returned because it cannot be legally possessed in the first place. Contraband includes drugs, counterfeit money, certain obscene materials, and a variety of other items deemed illicit.
Warrants are issued from court authorized law enforcement agents, such as police officers, to arrest individuals and to conduct searches. Warrants are required because the Fourth Amendment of the U.S. Constitution guarantees that a citizen cannot be illegally searched and seized. By requiring a warrant, courts are protecting those Fourth Amendment rights. The courts apply a warrant requirement in certain situations because each citizen has “an expectation of privacy.” It is important to understand that the Fourth Amendment protects people, not places.
Courts also commonly issue search warrants, which direct police officers to conduct a search of certain premises for specific things. Like arrest warrants, search warrants are issued by judges based on information received from law enforcement officials and probable cause is required.
The requirements for search warrants are stringent. The U.S. Supreme Court has said that a citizen’s constitutional privilege against illegal searches is “a firm line” at the entrance to your home. However, because the Constitution protects people, not places or things, search warrants are not required where the person has no expectation of privacy.
Abandoned buildings and vehicles can also be searched without a warrant because the owner is no longer using them and has no expectation of privacy. For example, the renter who moves out of his apartment in the middle of the month, although the month is paid up, no longer has a legitimate expectation of privacy. The apartment is considered to be abandoned and it can be searched without a warrant. Additionally, the driver being pursued by police who throws her purse out the window cannot later complain the police went through the purse without a warrant. She threw it away and, therefore, could not expect its contents to remain private.
What is an “informant”?
An informant is a person working with the police to provide information concerning criminal activities. The informant is not a law enforcement agent. The informant provides the “information” that supports the probable cause element for obtaining a warrant.
I have gone to the police and reported some suspicious activity in my neighborhood. Why is the information I provided not good enough for them to obtain a search warrant?
Although you are acting as an “informant,” the police may view your tip as a rumor since you are a first-time informant. Without more information, the officers do not have probable cause to obtain a warrant. If you have photographs or video of a criminal activity, turn it over to the police, as this may provide them with probable cause to obtain a warrant. Be aware that this means you will likely be called as a witness in any criminal trial that may occur as a result of your tip.
I am currently on probation. Can I refuse to let my probation officer into my house without a warrant?
No. Your probation officer does not need a warrant to enter your home to search for probation violations, such as drug possession.
Typically, one of the conditions of probation requires you to let a parole or probation officer search your person, residence, belongings and vehicle for drugs if the officer requests. If you are unwilling to accept the condition, you can choose to serve the suspended jail time.
CAUTION: If you refuse a probation officer’s request to search, you have violated the conditions of your probation. Probation can be revoked, and you will finish serving your sentence in jail.
Can the police search my home without a warrant?
Rarely. The U.S. Constitution requires a search warrant for residences unless a valid exception to the warrant requirement exists, such as “exigent circumstances.” For example, a person running from the police can be followed into his home. If the police believe a person in the home is in immediate danger, especially children, the police are allowed to enter and search your home without a search warrant.
The police searched my hotel room without a warrant. Is this illegal?
Usually. A person checking in at a hotel for the night has a reasonable expectation of privacy and a search warrant is required, except in exigent circumstances. A hotel becomes the traveler’s “transitory home” and Fourth Amendment protections apply.
TIP: Once you have checked out of the hotel, your “transitory home” is abandoned and your room may be searched without a warrant.
The police have accused me of selling stolen goods out of my bookstore and have searched the entire store without a warrant. Why is this legal?
Search warrants are not required for purely commercial business premises or property. You do not have an expectation of privacy if, at the time of the search, you opened up the property to the general public.
SIDEBAR: Doing business out of a home makes that home a commercial business. Thus, if someone is selling drugs out of their home and invites a police officer (acting as a decoy) into the house to transact business, the officer can conduct a search without a warrant.
The police, without a warrant, searched my garage, where my brother sometimes repairs cars for people. Is this legal?
Yes. If your brother is operating a public business out of a building on your property, you cannot now say that you had an “expectation of privacy” in those premises. Any items the police find while searching the garage were legally obtained.
Although garages and other outbuildings on your property generally do enjoy an expectation of privacy and cannot be searched without a warrant, you can change the nature of the buildings by opening them to the public. For example, by setting up a flower and plant business in your greenhouse where you sell to the public, you can no longer claim an expectation of privacy in the greenhouse.
SIDEBAR: Courts do not look at the type of building that was searched but, rather, its nature. “Type” refers to what the building is labeled or called, i.e., garage, barn, stable or greenhouse; “nature” refers to whether its actual use is public or private.
I have a private office at my place of employment. Can it be searched without a warrant?
Probably not. Again, where there is a reasonable expectation of privacy, searches may not be conducted without a warrant.
Courts look at warrantless workplace searches on a case-by-case basis. In order to determine whether there is a reasonable expectation of privacy in an office located on premises accessed by the public, courts look at whether:
- the occupant has the right to exclude others from the space;
- precautions were taken to maintain privacy, such as doors and locks; and
- the occupant has a possessory interest in the space, such as the storage of personal items, documents or records.
Some examples of workspaces that can be searched without a warrant include offices or workspaces open to public view including those:
- located in an open space with the work area hidden by a partition or divider;
- located in cubicles where the desktop is blocked from public view;
- that are shared with another employee; and
- in public areas.
The employees in these offices could not reasonably expect privacy, since what they are doing in the workspace can be seen, at least partially, and heard by others. For example, the telephone calls are not private in these situations.
By posting signs on their “campuses” warning that all persons entering are subject to search, employers have automatically reduced their employees’ expectations of privacy in their offices.
Some examples of workspaces that cannot be searched without a warrant include private offices:
- with doors that can be locked and the employee has the only key; and
- doors that require a personal password to enter.
If an employer provides a safe or locking file cabinet for the employee’s use only, it cannot be searched without a warrant.
Can the police search my garbage without a warrant?
Yes. Once you have placed your garbage or trash in a location that is accessible to the public, you no longer have an expectation of privacy. Searching and seizing the trash is legal.
In some cases, state constitutions have an expanded right against illegal searches that requires a warrant for a search of trash placed on the curb in opaque bags or containers that are secured. For example, the Vermont state constitution declares that its citizens and their “houses, papers and possessions” may not be searched and seized illegally or without a warrant.
I saw my neighbor place marijuana plants in our apartment dumpster. If I remove and take them to the police, have I done anything illegal?
No. Once placed in the communal dumpster, your neighbor’s trash can be searched by anyone, including the police, and what is found there can be turned over to law enforcement officials. Furthermore, the police can validly obtain a search warrant based on your removal of the plants.
Why are the police conducting a search on my driveway without a search warrant?
A search warrant is not required in all of the areas around your home. If the area around your home, known as curtilage, is open to the public and uninvited guests, a search warrant is not necessary for the police to enter. Public curtilage includes walkways, driveways and other direct routes that lead to your residence and are impliedly open to the public.
I own several acres that are fenced and posted with “no trespassing” signs. Doesn’t this prevent the police from searching the area surrounding my house without a warrant?
The U.S. Constitution does not require a warrant for searches of open land and spaces. This is known as the “open-fields” rule. The area need not be a “field” nor “open” in order for a court to find that an “open field” exists. An “open field” is simply an area that is unoccupied, undeveloped or abandoned where no expectation of privacy exists.
Furthermore, you cannot necessarily expand the protections against a search of your property by fencing it in or posting a “no trespassing” sign. Evidence of open gates, regular entry by meter readers and others may be used to show you did not have an expectation of privacy outside your home. Walkways, driveways and other direct routes that lead to your residence are open to a search.
SIDEBAR: However, some state constitutions may expand your guarantee against an illegal search to a larger area outside your home.
My home is set back from the street with a long driveway, gates and guard dogs. Can the police still enter without a search warrant?
Probably not. The locked gate and dogs indicate that the police have to find a way other than a direct route to obtain access to your property. Since the area around your home, or curtilage, does not allow uninvited guests or members of the public to enter, it cannot be searched without a warrant.
SIDEBAR: Search or arrest warrants obtained because of information gained or observations made by entering into curtilage not impliedly public are invalid. Because an intrusion occurred in order to gain the information for the warrant, the information is considered illegally obtained by courts.
Is a search warrant required to search my child, her locker, backpack or other possessions while she is at school?
Although it depends on the circumstances of each case, you should probably assume that your child could not be legally searched without issuance of a warrant. The courts have held that a school’s need to effectively deal with threats of violence, drugs, weapons and other potential crimes on campus must be balanced against your daughter’s guarantee against illegal searches and seizures. For instance, her purse or backpack cannot be searched without a warrant if a teacher suspects she was merely smoking and may have cigarettes in it. She has an “expectation of privacy” in those items.
However, sniffer dogs brought into schools to sniff out illegal substances have been held by courts to be a reasonable form of search since smells, which are “out in the open,” are the same as items in public view.
My child is at college and was arrested by campus police when drugs were recovered in her dorm room after the resident advisor found them and reported her. Is this an illegal search?
No. Private citizens are not required to obtain search warrants, and what they discover and report to the police may be the basis for a valid arrest. Since the resident advisor is not a law enforcement official, his search was constitutional.
SIDEBAR: If the resident advisor, or any other student, made the search upon the suggestion and with the guidance of police, the search is considered a government search and a warrant must be obtained. The person searching is considered to have the status and authority of a police officer in such a case.
Can my vehicle be searched without a warrant?
Yes. Under the “automobile exception,” law enforcement officers may search your vehicle if they believe there is evidence of a crime within it. A warrant is not required for a search because a vehicle is mobile and can be moved and transported easily. Of course, the officer must have a reasonable belief based on facts that he could articulate to explain the search. For example, an officer asks the driver to get out of his truck and frisks him to make sure he does not have a weapon. The officer finds an ammunition clip in the driver’s pocket. At that point, the truck may be lawfully searched because the officer could reasonably believe a gun was in the vehicle.
SIDEBAR: If you have been pulled over, reasonable belief exists for your vehicle to be searched once you have been arrested.
The automobile exception does not apply, and, in fact, your consent is invalid, if your vehicle was stopped illegally. For example, if you were pulled over because the officer believed you ran a red light, although video records later showed that you did not, a subsequent search is unconstitutional. Your consent is only valid at an illegal stop if intervening circumstances arise between the stop and the search evidencing some criminal activity.
My teenager was pulled over and consented to a search of our family car. He does not own the car; he did not know he could refuse a search; and the officer never told him of his right to refuse. Is the search illegal?
No. The police officer had no duty to inform your child, or anyone else, of his right to refuse consent to the search. Additionally, your son had the authority to consent to the search although he was not the owner of the vehicle, since he was driving it with your permission.
TIP: Persons driving your car with permission can give consent to a search of the vehicle. If you are loaning your vehicle to another person to drive, remove any items that you consider private.
Is a motor home subject to the automobile exception for searches?
No. A warrant is required to search a motor home because there is a higher expectation of privacy in it as compared to a passenger vehicle. The motor home generally has shades, curtains, beds and baths just like a residence where you expect privacy. Because you can actually live in a motor home for an extended period of time, it is more than just a mode of transportation and the automobile exception does not apply.
Can my boat be searched without a warrant?
Probably. States generally have statutes concerning boat and water safety that allow for official inspections. Furthermore, boarding a boat is usually a minimal “invasion,” unlike the search of your home.
An arrest warrant is issued by a judge or magistrate and directs police officers to arrest a person accused of a crime. The arrest warrant is usually issued on the basis of information concerning a crime that the police give to a judge, or it may be issued after a complaint is filed by the prosecutor or district attorney. Arrest warrants may also be issued after the grand jury returns an indictment against an individual.
Arrest warrants must be based on “probable cause” and supported by a sworn statement or “affidavit.” Probable cause exists when the known facts surrounding the situation tend to implicate a person in a criminal activity. Absolute proof is not required-only a reasonable suspicion based on trustworthy facts. Police often use informants to gather information for arrest warrants.
The warrant acts as a notice to the named person of the charges brought against him. It also serves the purpose of bringing the accused before a judge, thereby beginning the criminal process against him.
Do the police have to actually witness a possible crime in order to get an arrest warrant?
No. Probable cause for an arrest warrant can be based on second-hand knowledge such as a friend reporting to the police that you told him about a crime you committed.
Can I go to the judge and ask for an arrest warrant to be issued if I have information about a crime?
No. Warrants are issued based on information a judge receives from law enforcement agencies and officers. A judge can only issue a warrant after the police have evaluated the information and determined that a crime probably has been committed.
My 4 year old child may be the victim of a crime. If we go to the police, can they obtain an arrest warrant based on what she tells them?
Yes. Even very young children with inconsistent stories may provide enough facts for an arrest warrant to be issued. Additionally, courts have also accepted a child’s nonverbal response to questions from the police as providing adequate probable cause to issue arrest warrants. A police officer will give a judge an affidavit swearing as to what your child has told him.
SIDEBAR: Child molestation and abuse cases require that police officers must often use what very young children “tell” them in order to obtain an arrest warrant. Judges are lenient in these situations and do not automatically discount the child’s testimony simply because the child is not yet a certain age. Additionally, judges do not require that an expert interview the child.
Is a warrant required in order for the police to arrest me?
No. A warrant is not required for an arrest if the police officer has probable cause to suspect you have committed a crime. Some state laws are stricter than the constitutional “probable cause” requirement and set out specific exceptions, which must be met in order for a warrantless arrest to be made.
SIDEBAR: Arrest warrants are not required, and constitutional rights are not violated, where “exigent circumstances” exist. These are situations where it is impossible or impracticable for the officer to get a warrant before the suspect flees or escapes, destroys evidence or commits further crimes.
The police detained me for a few minutes and questioned me concerning a crime that had occurred nearby. Can they do that?
Yes. Police are allowed to briefly detain you in a nonintrusive “investigatory stop” to ask about possible criminal behavior where they have a reasonable suspicion of your involvement. Since this is not considered an actual “arrest,” neither a warrant nor probable cause (as required in a warrantless arrest) was necessary in order for the officer to stop you.
What is a “citizen’s arrest”?
An arrest by a private person of another person committing a crime is sometimes referred to as a “citizen’s arrest.” Your state may or may not allow for a citizen’s arrest. If it does, the person making the arrest must bring the suspect to the attention of law enforcement officials without delay.
CAUTION: States do not generally allow for the use of deadly force when making a citizen’s arrest. In most situations, the crime must have been committed in the arresting party’s presence in order for her to proceed with a citizen’s arrest.
Can the police arrest me without actually having the warrant?
Yes. An arrest warrant is not required to be “in hand.” In most states, the arresting officers are only required to verify or confirm that one has been issued.
The police burst into my home and arrested me. Is this legal?
Not unless “exigent circumstances” existed. If there were no exigent circumstances, such as the police observing a crime through the window or hearing screams, your home was illegally searched, you were illegally “seized” and your constitutional rights were violated.
Exigent circumstances do not necessarily have to be dramatic. For example, if you are hiding someone the police believe committed a crime and will commit additional crimes, your home can be searched.
A warrant for my arrest was issued several years ago in another state. If I am pulled over, will a police officer find out about this prior warrant?
Yes. A warrant never goes away or expires and law enforcement has access to warrant information through certain databases.
If your crime was a felony, the state that issued the warrant probably entered the data in the FBI’s National Crime Information Center (NCIC) database that is accessible to law enforcement everywhere. By entering your warrant into the NCIC system, that state is showing its willingness to pay for your extradition, or transport, back into the state, where you will face trial.
However, many criminal warrants are not entered into the NCIC because states are unable to pay the cost of extradition. States have their own databases, which are compiled from police and sheriff’s departments and county court records. In some states, all criminal warrants, both felony and misdemeanor, are part of the database and you will be apprehended if discovered.
SIDEBAR: The NCIC computer system allows law enforcement officers nationwide to check for outstanding warrants. For more information you may visit:www.fbi.gov/hq/cjisd/ncic.htm.
I was pulled over and the police officer said I have an outstanding arrest warrant because of a failure to pay a traffic ticket several years ago. How do I prove I paid it?
Unfortunately, it is not uncommon for some payments to fail to show in the computer system, resulting in a warrant being issued for your arrest. Unless you kept your cancelled check or some other receipt, you may have to get your bank to come up with proof of payment.
TIP: To avoid this situation, pay with a check if you can, obtain the cancelled check from your bank and keep it. Get a date-stamped receipt from the clerk accepting your payment and retain it. Mark your calendar to call the clerk in 30 days to make sure that your payment has been entered into their computer system, and ask the clerk to verify to you directly that no arrest warrant has been issued.
Why has the court issued a warrant for my arrest when I have paid the fine?
Reasons courts issue warrants for many . Paying the fine may have been only part of your obligation to the court. Other requirements that must be met may include the need to:
- pay your ticket in the allotted amount of time;
- appear for your court date;
- pay more than one fine or an additional fee;
- complete payment arrangements; and
- work a certain number of community service hours.
Unlike other criminal warrants, arrest warrants from some traffic courts may be disposed of easily by pleading “guilty” or “no contest” to the warrant charge, and paying the original fine plus any additional fines. You can also dispose of the warrant by pleading “not guilty,” in which case, you will generally be required to post bail or a bond. If you are unsure of what to do, call and ask the clerk how to get your case “out of warrant status,” or check to see if the traffic court has a Web site explaining your options.
Can I find out if a warrant has been issued for my arrest?
Probably not. Only a few states make this information public, and the national database is only for law enforcement to search. You might be able to find out something from the county sheriff’s office if you know the county where the warrant was issued, but generally, information on arrest warrants is closely held until the arrest is actually made.
The police have an arrest warrant for my sister who is living at my house. Can they come into my home and arrest her?
No. A search warrant is required for the police to enter someone’s home. An arrest warrant does not allow law enforcement officials to “search” for suspects in private homes. However, once a suspect answers the door and identifies herself, she can be arrested on the premises. She has voluntarily exposed herself to arrest and seizure by the police.
Furthermore, upon leaving the home and going out in public, a suspect can be arrested. At the threshold of the front entrance, on the porch or anywhere where there is exposure to public view, touch and hearing, arrest is allowed.
When you fail to appear for a court date after an arrest, the judge issues a bench warrant authorizing law enforcement officers to bring you into custody and detain you. Since you now have fugitive status, a bench warrant permits an officer to enter premises without a search warrant in an effort to find you. Bench warrants continue in effect until you are either arrested or the issuing court withdraws it.
A grand jury is a group of people that listens to evidence of crimes presented by prosecutors, then votes whether or not a person must stand trial for the crimes. A grand jury does not decide guilt or innocence and does not hear evidence from a person who is alleged to have committed a crime. If the grand jury decides that a crime has probably occurred, an indictment, formally charging a person, is issued.
Like a trial jury, a grand jury is chosen and sworn in by a judge. Generally, grand jurors do not meet or convene every day. A grand jury might convene once a week, every month or any other time frame, depending on its workload. Once seated, the grand jury picks a foreperson to preside over and control the proceedings.
The number of people serving on a grand jury is different in each state. Generally, grand juries are composed of more people than a trial jury and serve for up to 1 year. Because of the length of time involved, grand juries are largely made up of retirees and people with flexible work and home schedules.
Federal Grand Juries
Because the U.S. Constitution requires, in the Fifth Amendment, that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of a Grand Jury�,” grand juries are utilized where a federal crime has been committed. Federal grand juries consist of 16-23 members. Members of federal grand juries can serve up to 3 years. A federal grand jury is required to have both a foreperson and deputy foreperson to swear in witnesses that appear before it.
State Grand Juries
States use grand juries as well, but often have other ways to issue an indictment, such as a preliminary hearing before a judge who decides whether the evidence shows that a crime may have occurred. Most states require a grand jury to consist of anywhere from 12-23 members. State grand juries serve for a variety of terms varying from 1 month to more than a year. Some grand juries in large urban areas convene every day for several weeks.
Grand juries have the power to subpoena or require a witness to appear and testify. A subpoena is a formal document commanding a witness to appear before the grand jury on and at a certain date, time and place. A subpoena can also require the production of documents. Like courts, grand juries can issue subpoenas and freely use them to compel a witness to testify or to summon physical evidence, documents and records.
Can I be picked to serve on a grand jury, and what do I do to get excused from duty?
States use voter lists and drivers’ license databases to randomly choose members of a grand jury. Your chances of getting called for grand jury service are the same as serving on a jury in a trial. You are automatically excused for a variety of reasons including being over a certain age, illness or incapacity, or employment in a public safety position, such as a police officer. Additionally, the court may excuse you if you can show that serving will cause a hardship. Hardships include missing regular work or being unable to care for small children.
I have been chosen as a member of a grand jury. What should I expect when I arrive at the courthouse?
Every court has a different procedure, but you can generally expect to check in with a clerk who is assigned to receive potential jurors. You will be sent to a room where you will undergo some type of orientation regarding your schedule, duties and payment. Your role as a grand juror will be explained, and you will learn about the process of investigating crimes and returning indictments. The clerk, prosecutor or judge can conduct the orientation.
If you are serving on a federal grand jury, you will meet the U.S. Attorney for the federal district in which the court sits. The U.S. Attorney’s office employs many different lawyers who you will deal with in the course of your service.
TIP: The government publishes “The Handbook for Federal Grand Juries” that may or may not be given to you at the time of your orientation. If you do not receive one, ask the clerk or U.S. Attorney’s office. The Administrative Office of the U.S. Courts publishes the Handbook, and you should contact them directly if you are unable to get a copy in your district. You can also view a copy online at www.uscourts.gov/districtcourts.html.
As a member of a grand jury, what are my duties and responsibilities?
You are required to listen to the evidence presented to you by the prosecutor, discuss it and vote whether to issue an indictment charging a person with a crime. A grand juror has the right to ask questions of the witnesses. In federal court and most states, you can address your question to the witness directly.
You will frequently hear testimony from police officers and state and federal agents concerning crimes. You will examine reports and records made by those officers and agents that contain facts concerning the crimes. It is possible that you will hear evidence of dozens of similar crimes in a single day. Service on a grand jury is time-consuming. You will sit and listen to evidence, testimony and records being read by attorneys.
I think a grand jury may be investigating me. How can I get information concerning their investigation?
Grand juries meet in “secret.” The evidence, testimony of witnesses and other matters that occur when a grand jury is convened are not disclosed to the public in order to protect ongoing investigations and the privacy of persons not yet charged with a crime. If you are under investigation by a federal grand jury, there is no duty to inform you. However, as a policy, federal prosecutors send someone who is the “target” of an investigation a notice informing the person of her rights and setting out the crime being investigated. Some states also utilize “target letters.” If you receive a target letter, retain an attorney as soon as possible.
SIDEBAR: Prosecutors, judges and grand jury members cannot and will not provide you with any information concerning an investigation. Witnesses, however, are not under any such “gag order” and can provide information; but they are often cooperating with the grand jury and will not talk to you.
CAUTION: Under no circumstance should you ever contact a member of the grand jury. It is a crime under federal law to attempt to influence a grand jury member, including asking one of them whether you are being investigated.
I received a subpoena requiring me to appear before a grand jury and testify. Do I have to go?
You may not have committed a crime, but could still find yourself involved with a grand jury if you have knowledge of certain facts concerning a criminal act. The subpoena often requires you to bring any documents you have that concern the investigation. If you do not appear on the date and time indicated in the subpoena with all requested documents, you may be held “in contempt of court” and either fined, jailed or both.
TIP: The grand jury subpoena has two boxes indicating whether you are being subpoenaed to testify as a witness or to provide documents, or both. If only the document box is checked, you or your lawyer should contact the prosecutor and find out exactly what documents he wants you to bring prior to appearing in front of the grand jury. Your goal is to cooperate and avoid any misunderstandings with the prosecutor and grand jurors.
I have been subpoenaed as a witness to testify before a grand jury. I may also be the subject of a grand jury investigation. Do I need to retain an attorney, although I have not been charged?
It is highly advisable to retain an attorney should you be called as a witness. Often a witness is put in a situation where what she says can incriminate her in the crime. If you are unable to afford an attorney in a federal case, one will be provided upon request. Some states also require that an attorney be appointed for indigent witnesses.
If you become aware of or are informed that you are the target of a grand jury investigation, you should retain an attorney. Federal courts, and some state courts, have adopted rules for furnishing lawyers if you cannot afford one.
You must contact the court and determine the process for having an attorney appointed if you cannot afford one. Payment of fees, the number of copies that are required to be filed, the existence of mandatory e-filing and other logistics involved in an application for the appointment of an attorney must be followed exactly.
TIP: Federal courts have Web sites setting out their rules and often have forms available for downloading. Contact the court clerk for information or check www.uscourts.gov/districtcourts.html to locate the Web site for your particular court.
Can I bring my attorney with me into the grand jury room?
No. In federal court, your attorney may not accompany you to testify before a grand jury. The attorney is generally outside the grand jury room for consultations. You must attend alone, but you are allowed to confer with your attorney at “reasonable” intervals upon your request. The prosecutor and your attorney determine the meaning of “reasonable.” In some situations, a witness will consult with his attorney before answering every question.
Can I refuse to answer questions put to me before the grand jury?
Usually, you must answer the questions from the grand jury or you will be held in contempt, then fined, jailed or both. However, if your answer would provide evidence that you committed a crime, you can refuse to answer and invoke your Fifth Amendment privilege against self-incrimination.
If you have been given immunity from prosecution, you cannot invoke your Fifth Amendment privilege and may be forced to answer, since you have a promise from the prosecutor that what you say will not be used against you. “Taking the Fifth” is a complex matter with many legal ramifications, and you are advised to retain an attorney or ask the court to appoint one for you any time this situation arises.
SIDEBAR: Certain privileges, such as those applied to attorney-client, physician-patient, or husband-wife relationships, allow a witness to avoid answering questions regarding communications within the relationship. These are called evidentiary privileges, and the laws differ between state and federal courts as to which ones are recognized and available for a witness to claim or invoke during her testimony.
I am missing work to testify before the grand jury. Do I get any sort of payment or reimbursement to compensate me for my missed wages and expenses?
If you have testified before a federal grand jury, you will receive an attendance fee of $30. Federal law also requires that you be reimbursed for reasonable travel expenses. If you have driven yourself in your vehicle, you will get a mileage allowance. Incidental fees such as bridge, road and tunnel tolls and parking expenses are also reimbursed. If you are testifying before a state grand jury, most states pay an attendance fee and provide reimbursement for travel expenses. The clerk to whom you report will have information concerning special forms you may be required to fill out.
TIP: Keep copies of all receipts. They are required for reimbursement of your expenses.
I recently testified in front of a grand jury. My family is curious about my experience and the local newspaper has called. Can I talk about my testimony and other matters that occurred while I was in the grand jury room?
In federal court, a witness is not required to remain silent after giving his testimony, and can disclose the questions asked and other matters that went on in the grand jury room. Many states also do not prohibit witnesses from speaking about their experience. Before you do disclose any information to anyone, check with the prosecutor and confirm that you can talk publicly about your grand jury testimony.
CAUTION: It is not uncommon for a witness to enter into an agreement with the prosecutor concerning her own criminal actions in exchange for testimony. If you have made such an agreement, speaking out will be prohibited. Once you do so, you are no longer “cooperating” and could also be indicted.
My underage child has been a victim of a crime and is testifying before a grand jury. Can anyone accompany her into the grand jury room?
Yes. Children can and do testify before grand juries as victims or witnesses. Special protections of privacy and confidentiality for the child are mandated in federal courts and many state courts. Prosecutors and courts are strongly advised to appoint an attorney for the child. Unlike an adult, the child has the right to have her attorney present while she is in front of the grand jury. More information concerning children testifying in court and in front of a grand jury can be found at: www.childwelfare.gov/systemwide/courts/specialissues/iet.cfm#child_test.
An indictment, or charge, is the official means by which a person is charged with a felony. It is a formal written document issued by a grand jury after it hears evidence regarding the facts of the alleged crime. After an indictment is returned, a warrant for arrest is issued and the person accused of the crime is taken into custody.
The indictment must meet certain requirements or it will be found by the courts to be defective and will then be dismissed. The indictment must state the accused’s name, set out the facts of the criminal act and the specific elements present that resulted in a violation of the law. Special language and written formats may also be required.