Usually, the police need a search warrant before they can seize evidence of a crime. However, under the evanescent or fleeting evidence exception, police can seize evidence without a warrant if the evidence poses a risk of being lost. The idea is that the evanescent must be seized immediately and therefore the police do not have time to secure a formal warrant. This is especially true if the suspect has made attempts to destroy evidence before a warrant is secured.
This is very similar to the idea of “hot pursuit” – that is, police also do not need an arrest warrant if the suspect has taken flight and they are in hot pursuit of the culprit.
There is no set definition for what constitutes evanescent evidence. In general it can include any item that needs to be obtained quickly before it is no longer available. Evanescent evidence generally refers to physical, tangible objects as opposed to verbal testimony.
Some common examples of fleeting or evanescent evidence include:
Bear in mind that oftentimes evanescent evidence has to do with the suspect’s motives in tampering with the evidence. Evidence is more likely to be classified as evanescent if the suspect has demonstrated an intention to destroy, conceal, or dispose of the evidence. Thus, even if the evidence is not subject to decay or destruction by its physical nature, it might be considered evanescent depending on how the suspect has treated it.
While police do not need a warrant to seize evanescent evidence, it is not rare for the police to make a mistake in identifying evidence. In order to proceed with a warrantless seizure, the police must have a reasonable belief that the evidence will be destroyed.
If you have been subject to an illegal warrantless search or seizure, you would need to prove that the police made an unreasonable search in taking your property. The proper remedy in this situation would be for the judge to exclude the evidence during trial. The evidence will be suppressed under the exclusionary rule, meaning that the prosecutor cannot use the evidence against the defendant in court.
If you have been implicated in a crime, it is important to know all your rights, especially regarding the evidence that can be used in court. Evidence that is illegally obtained by the police cannot be used in court. You should contact a criminal defense lawyer immediately to discuss your rights if you have been subject to a questionable search or seizure.
Last Modified: 05-22-2018 12:12 AM PDTLaw Library Disclaimer
We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.