When can the government search your home? The Civics Project explains
Q. When Does the Government Have the Right To Search Your Home?
A. Americans have a right to be secure in their homes and possessions. The right is guaranteed in the 4th Amendment to the U.S. Constitution, which reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
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The U.S. Supreme Court stated that the purpose of the 4th Amendment is to, “safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” What constitutes an unreasonable search is not always clear and in application, what unreasonable means can be complex. There are different places that can be searched, and different standards apply based in part on what the expectations of privacy are in that place. A search conducted at the border, or in an airport or in a school can have a different assessment of reasonableness than a person’s private home. Searches of cars can also raise tricky constitutional questions.
When it comes to your home, in most cases, a search done without a warrant is presumed to be unreasonable. However, there are exceptions for when consent is given, the items seized are in plain view, or there are exigent circumstances. Exigent circumstances are specific situations such as when a people are in imminent danger, or where evidence might be destroyed. If a person feels as if there has been an unlawful search or seizure, they can attempt to have anything seized excluded from the evidence. A court will make that determination.
The 4th Amendment does not mean that you can never be searched by the police or government. It simply requires that the search not be unreasonable. As noted above, most home searches require a warrant. It is important to know that law enforcement cannot issue a warrant. They must go to a neutral third party (a judge) and justify the need for the search. A judge will only issue the warrant if there is probable cause. The warrant itself must specify the place to be searched and what is to be seized. The failure to comply with these requirements can invalidate the search.
If someone believes that their rights under the 4th amendment have been violated by federal officials, they can seek damages under federal law. This is called a “Bivens Action,” based on the holding in , Bivens v. Six Unknown Named Agent of Federal Bureau of Narcotics (1971) and can apply when there is a violation of the 4th amendment under color of law. However, in recent years, the U.S. Supreme Court has been less open to remedies under Bivens.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd. You can read past columns here: https://www.palmbeachpost.com/search/?q=kevin+wagner
This article originally appeared on Palm Beach Post: Trump, Mar-a-Lago warrant: When can the government search your home?
