The term search and seizure refers to activities conducted by the police in order to obtain evidence connected to a criminal investigation. A search conducted by the police generally occurs when they scan a person’s body, belongings, or property in an attempt to discover evidence. Seizure occurs when the police actually obtain possession of any items of evidence they discovered during their search. Such items are then held by the police for the duration of the criminal trial.
Under the 4th Amendment, police are not allowed to conduct a search and seizure without a search warrant so long as the person they are wishing to search has a reasonable expectation of privacy on the property. The 4th Amendment guarantees all American citizens the right to be free from unreasonable searches and seizures of a person and/or property.
A search warrant is a court order signed by a judge that grants the police the authority to search a specific place for specific items. Without such a warrant, the police may be violating a person’s 4th Amendment right.
Is a Search Warrant Always Required?
In order to obtain a search warrant, the police will need to prove to the judge that there is probable cause. What this means is that the police officer is knowledgeable of specific facts that provide a reasonable belief that a criminal offense has been committed, or is about to happen. An example of this would be if the police receive a tip from several different informants that illegal drugs are being stored in a specific house.
This may be considered probable cause to believe that drug trafficking is occurring at that house. Other than probable cause, if the police wish to obtain a search warrant, they must also be able to describe the place that is to be searched as well as the property that is to be seized with reasonable accuracy.
There are some circumstances in which the police may conduct a search without a valid search warrant. Some examples of such circumstances include but may not be limited to:
- The search is being made in connection with a lawful arrest, such as when the arrest is made based on probable cause;
- Search of a person’s automobile, especially if there is a risk of the vehicle fleeing;
- The defendant has consented to a search without a warrant;
- The defendant is being stopped and frisked, although the search is limited to what may be plainly and non-invasively felt;
- The evidence is in plain view; and/or
- There is a risk that the evidence may be destroyed if not immediately seized, or that the suspect will flee in the time it takes to request a valid search warrant.
Can Another Person Give the Police Consent to Search My Property?
Whether another person can allow the police to search your property is a complex subject. It is important to note that such searches are typically known as third party consent searches. A person may give the police consent to search your living area only if they are in charge of the premises. An example of this would be if your landlord or roommate share common areas such as a living room. The police may search that area without your consent, as the consenting party has some degree of control over the area.
However, the same police would likely need a valid search warrant to conduct a search of your bedroom, especially if you have it locked and no one but you has the key. Additionally, if one person consents to a search when the police are at the door but you do not, the police will need to come back with a valid warrant. If police suspect that criminal activity is going on inside the home, such as the sound of a fight, they may be able to enter without permission. Again, this is all dependent upon the specifics of each individual circumstance.
What Else Should I Know About Police Search and Seizure?
If your car has been compounded, the police may conduct a search of your vehicle. This includes any closed containers found within the vehicle, as well as the trunk. This remains true even if the police obtained your vehicle after it was stolen. However, the search must follow fair and reasonable standards; and, police may not pull you over and tow your vehicle simply to conduct a search.
The police may search your garbage when it is in a place accessible to the public. The majority of courts have upheld search and seizures of garbage in various locations, such as:
- Set out on the curb or on the sidewalk in front of your residence;
- Within your yard or property surrounding the residence;
- Within your garage;
- Within motel or hotel rooms;
- Within offices;
- In trash receptacles found on the street, at a rest stop, or in a restaurant; and
- In communal receptacles shared by tenants in an apartment complex.
If evidence is seized illegally, it cannot be used in court as evidence. This is known as the exclusionary rule which states that any evidence obtained through illegal means must be excluded during the proceeding criminal trial.
Do I Need an Attorney for Search and Seizure?
Search and seizures must be conducted according to strict standards. If you believe that your rights were violated by the police conducting an illegal search and seizure, you should immediately consult with a skilled and knowledgeable criminal defense attorney.
An experienced criminal defense attorney can help you understand your legal rights and options, as well as help you file any necessary legal documents to exclude evidence obtained illegally. Finally, an attorney can provide you with representation in court as needed.