Search and Seizure FAQs

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Which Laws Govern Search and Seizure?

Search and seizure for the purpose of criminal investigation is mainly governed by the 4th Amendment. The 4th Amendment basically guarantees that U.S. citizens shall be free from “unreasonable search and seizure” of property in places that have a “reasonable expectation of privacy.” These generally include places such as property that one owns or lives at, or places where they are an overnight guest.

In addition to the 4th Amendment, each state may have additional laws and rules that govern search and seizure. 

What Is a Warrantless Search?

A warrantless search is a criminal search that is conducted by the police without them obtaining a search warrant from a judge. In most cases, warrantless searches are illegal; however, there are certain situations in which a warrantless search is justified. 

These may include situations where:  a suspect is fleeing; there is danger that evidence may be destroyed; the evidence is in plain view; or the search is done in connection with a valid arrest, stop, or automobile search.

What Is an Illegal Search? 

An illegal search is a search that is conducted: 1) without a valid search warrant (if a search warrant is required); or 2) in a manner that violates a person’s reasonable expectation of privacy. 

Evidence that is obtained as a result of an illegal search generally can’t be used as evidence in a court of law. This is known as the “exclusionary rule”, and serves to protect citizens from the use of illegally obtained evidence in a criminal trial. 

Can the Police Search My Car?

Police can always search a person’s car if they first obtain a valid search warrant. However, they usually must have a reasonable suspicion that the car is holding criminal evidence in order to obtain a search warrant. 

Police can sometimes search a car even without a search warrant. They must first have “probable cause” to stop and search the car; they can then pull the car over and search for items that might be used as evidence. However, without a warrant, the search cannot involve the opening of containers that obviously cannot hold evidence. For example, if the police are looking for stolen golf clubs, they can’t search a purse in the car that is too small to hold a golf club. 

Do I Need a Lawyer for Search and Seizure Issues?

Besides the general principles listed above, there can be several different exceptions and modifications of each rule. These can depend on the state where the crime is being investigated, as well as the individual circumstances surrounding each search or seizure. If you have any issues involving search and seizure, you may wish to contact a criminal defense lawyer for advice. Your attorney can represent you in court in case you need legal defense services.

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Last Modified: 10-27-2015 03:40 PM PDT

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