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How Can the Officer Search Me Without a Warrant?

The Fourth Amendment to the U.S. Constitution and West Virginia Constitution Article III, Section 6, prohibit unreasonable search and seizures by the government against private citizens, without a proper judicial warrant. The West Virginia common law has further expanded on what is "unreasonable." One particular area of Fourth Amendment search and seizure law that courts are frequently called upon to review is known as a "warrantless search" conducted by Police.

A "warrantless search" occurs when an officer stops, investigates, searches, or detains an individual without first obtaining a warrant from a judicial magistrate or circuit judge, or consent from the individual. (Giving consent will severely hamper your ability to challenge the validity of the procedure later in a court suppression motion) In certain circumstances, the officer is justified in conducting the "search and/or seizure" and the "fruits" of his investigation may be used in a prosecution. However, the ends do not always justify the means. The way the officer conducted the "search and/or seizure" is subject to review.

Law enforcement may perform a search when they have a "reasonable suspicion" of criminal activity, even if it falls short of probable cause necessary for an arrest. Under Terry v. Ohio, 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. This detention and search is known as a Terry stop.

In Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), the Supreme Court reiterated the standard and held that "a policeman . . . whose observations lead him to reasonably suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion." An officer must have an articulable reasonable suspicion as to whether a crime has been committed, is being committed, or is about to commit a crime.

When reviewing the "articulable reasonable suspicion" that the officer possessed at the time of the "search of seizure" the courts (Federal and State) adopted a "totality of the circumstances" test like in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The aforementioned authorities have been interpreted and followed here in West Virginia. (See State v. Stuart, 192 W.Va. 428 (W.Va. 1994) Challenging the validity of an officers "search and seizure" is an extremely complex and highly intensive factual analysis. You should seek the help of a competent attorney. The "fruits" of any unlawful search may be barred from use against you in the States prosecution.

If you feel your case needs a review of the evidence obtained against you, your first step should be to contact us here at Wolfe Law Office. We can and will assist you in the legal process. If you or your loved one are in need of assistance with expunging arrests or convictions then contact Wolfe Law Office for a free consultation at 304-245-9097.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.