Take the following steps to help your family should you die or become incapacitated.
√ Have you made a financial power of attorney? With a durable power of attorney for finances, you can give a trusted person broad authority to handle all of your finances for an indefinite period of time if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn't have to be an attorney).
1. Do you have young children?You should name either a property guardian, custodian, or trustee to manage the money and property you leave to your minor children. (This can be the same person as the personal guardian you name in your will).
2. Do you need life insurance?If you have young children or own a house, or you may owe significant debts or estate taxes when you die, life insurance may be a good idea.
3. Have you filed a beneficiary form for your bank accounts and retirement plans? Naming a beneficiary for these types of accounts makes the account automatically "payable on death" to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
4.Have you considered the possibility that your heirs may have to pay estate taxes? If your assets are currently worth over $1.5 million and you are married or have a domestic partner, you might want to consider an AB trust.
5.Do you own a business or part of a business? If you're the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buy-sell agreement.
6. Have you considered funeral or cremation arrangements? Rather than a funeral prepayment plan, which may be unreliable, you can set up a Totten trust with your bank and deposit funds into it to pay for your funeral and final arrangements.
7.Have you stored your important information in a place where your attorney-in-fact or your executor can find it? Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
* will
* trusts
* insurance policies
* real estate deeds
* certificates for stocks, bonds, annuities
* information on bank accounts, mutual funds, and safe deposit boxes
* information on retirement plans, 401(k) accounts, or IRAs
* information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
* information on Totten trusts or funeral prepayment plans, and any final arrangements instructions you have made.
http://www.lagrangelaw.com/lawyer-attorney-1D56DEB5-3D5E-4692-A47FA2C05A274EBD.html
Wednesday, May 30, 2007
Charitable Trusts: Tax Breaks for Do-Gooders
If you want to give a big gift to charity, consider a charitable trust.
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement.
Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement.
Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
Charitable Trusts: Tax Breaks for Do-Gooders
If you want to give a big gift to charity, consider a charitable trust.
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement. Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement. Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
Arranging to Donate Your Body
Here are the legal basics of full body donations.
Most medical schools need donations of whole bodies for research and instruction -- and shortages may be especially acute at osteopathic and chiropractic schools. The reason they are called whole body donations is that the donation will be rejected if any of the organs have been removed from the body.
After using a donated body for study or instruction, a medical institution will usually cremate it and bury or scatter the cremains in a specified plot. However, the remains or cremains can be returned to family members for burial -- usually within a year or two. Those who want the body or cremains returned to a friend or family members for the final disposition should specify this when arranging for the donation.
No medical institution is allowed to buy a body, but there is usually little or no expense to the survivors when a body is donated. When a death occurs, most medical schools will pay to transport the body, as well as pay for any final disposition. Ask the nearest medical institution that accepts body donations whether it has specific arrangements for transporting and disposing of bodies to avoid any unexpected charges.
Body donations are usually arranged with a particular institution while the donor is living, but some institutions will accept the donation at death with the written permission of the next of kin.
If you live in a state with no medical school or one that has very strict requirements for whole body donations, you may find out more about your body donation options from the National Anatomical Service, which operates 24-hour phone services: 800-727-0700.
However, you should know that even if you have arranged in advance to donate your body to a medical institution, the institution may reject the donation. This may occur, for example, if:
* you have also donated one or more of your organs and these are taken at your death
* the institution's current supply exceeds its demand and there are no facilities for storage
* you die during surgery, or
* your body is unsuitable for study because it is extremely obese, or you have died due to a number of diseases that render it unacceptable, according to the institution.
http://www.lagrangelaw.com/lawyer-attorney-626D348C-B993-47B4-BB4111CC1DF8DD37.html
Most medical schools need donations of whole bodies for research and instruction -- and shortages may be especially acute at osteopathic and chiropractic schools. The reason they are called whole body donations is that the donation will be rejected if any of the organs have been removed from the body.
After using a donated body for study or instruction, a medical institution will usually cremate it and bury or scatter the cremains in a specified plot. However, the remains or cremains can be returned to family members for burial -- usually within a year or two. Those who want the body or cremains returned to a friend or family members for the final disposition should specify this when arranging for the donation.
No medical institution is allowed to buy a body, but there is usually little or no expense to the survivors when a body is donated. When a death occurs, most medical schools will pay to transport the body, as well as pay for any final disposition. Ask the nearest medical institution that accepts body donations whether it has specific arrangements for transporting and disposing of bodies to avoid any unexpected charges.
Body donations are usually arranged with a particular institution while the donor is living, but some institutions will accept the donation at death with the written permission of the next of kin.
If you live in a state with no medical school or one that has very strict requirements for whole body donations, you may find out more about your body donation options from the National Anatomical Service, which operates 24-hour phone services: 800-727-0700.
However, you should know that even if you have arranged in advance to donate your body to a medical institution, the institution may reject the donation. This may occur, for example, if:
* you have also donated one or more of your organs and these are taken at your death
* the institution's current supply exceeds its demand and there are no facilities for storage
* you die during surgery, or
* your body is unsuitable for study because it is extremely obese, or you have died due to a number of diseases that render it unacceptable, according to the institution.
http://www.lagrangelaw.com/lawyer-attorney-626D348C-B993-47B4-BB4111CC1DF8DD37.html
Arranging to Donate Your Organs
What to do if you want to donate your organs after death.
As medical technology has made successful organ and tissue transplants cheaper, easier and safer, organs and tissues are in great demand. And a growing number of states eagerly accept any body part for donation.
Among the organs and tissues now commonly being transplanted are:
* corneas
* hearts
* livers
* kidneys
* bone and bone marrow
* tendons, ligaments, connective tissue
* skin
* pancreas, and
* lungs.
Tissues and corneas can be taken from almost anyone -- and are often used for research and study. However, there are far greater problems with donating major organs such as hearts and livers. For example, while there are tens of thousands of people now on waiting lists to receive kidneys alone, only about 1% of all people who die are suitable kidney donors.
The principal method for donating organs is by indicating your intent to do so on a donor card. Once signed, this card identifies you to medical personnel as a potential organ donor.
You can get a donor card or form from most hospitals, the county or state office of the National Kidney Foundation or a community eye bank. In most states, you can also obtain an organ donation card from the local Department of Motor Vehicles. Depending on where you live, you can check a box, affix a stamp or seal, or attach a separate card to your license, indicating your wish to donate one or more organs.
Even if you have not signed a card or other document indicating your intent to donate your organs, your next of kin can approve a donation at your death. And conversely, even if you have indicated an intent to donate your organs, an objection by your next of kin will often defeat your intention; medical personnel will usually not proceed in the face of an objection from relatives. The best safeguard is to discuss your wishes with close friends and relatives, emphasizing your strong feelings about donating your body for research or teaching.
http://www.lagrangelaw.com/lawyer-attorney-F6AA57CF-FF21-4E37-B90CE0A40D145879.html
As medical technology has made successful organ and tissue transplants cheaper, easier and safer, organs and tissues are in great demand. And a growing number of states eagerly accept any body part for donation.
Among the organs and tissues now commonly being transplanted are:
* corneas
* hearts
* livers
* kidneys
* bone and bone marrow
* tendons, ligaments, connective tissue
* skin
* pancreas, and
* lungs.
Tissues and corneas can be taken from almost anyone -- and are often used for research and study. However, there are far greater problems with donating major organs such as hearts and livers. For example, while there are tens of thousands of people now on waiting lists to receive kidneys alone, only about 1% of all people who die are suitable kidney donors.
The principal method for donating organs is by indicating your intent to do so on a donor card. Once signed, this card identifies you to medical personnel as a potential organ donor.
You can get a donor card or form from most hospitals, the county or state office of the National Kidney Foundation or a community eye bank. In most states, you can also obtain an organ donation card from the local Department of Motor Vehicles. Depending on where you live, you can check a box, affix a stamp or seal, or attach a separate card to your license, indicating your wish to donate one or more organs.
Even if you have not signed a card or other document indicating your intent to donate your organs, your next of kin can approve a donation at your death. And conversely, even if you have indicated an intent to donate your organs, an objection by your next of kin will often defeat your intention; medical personnel will usually not proceed in the face of an objection from relatives. The best safeguard is to discuss your wishes with close friends and relatives, emphasizing your strong feelings about donating your body for research or teaching.
http://www.lagrangelaw.com/lawyer-attorney-F6AA57CF-FF21-4E37-B90CE0A40D145879.html
Searches and Seizures FAQ
Your right to privacy when the police come knocking, pull you over, or stop you on the street.
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
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