Search and Seizure Top Questions

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 What Is Search And Seizure?

In a legal context, the term “search and seizure” refers to activities that are conducted by the police in order to obtain evidence associated with a criminal investigation. A search that is conducted by the police generally occurs when they scan a person’s body, belongings, and/or property in an attempt to discover evidence.

Seizure occurs when the police obtain physical possession of any items of evidence that they discovered during their search, which are then held by the police for the duration of the criminal trial.

According to the 4th Amendment, police are not allowed to conduct a search and seizure without a search warrant as long as the person they want to search has a reasonable expectation of privacy on the property. This is because the 4th Amendment guarantees all American citizens the right to be free from unreasonable searches and seizures of a person or their property.

In short, a search warrant is a court order that is signed by a judge and grants police the authority to search a specific place for specific items. Without a warrant, the police may be violating a person’s 4th Amendment right by searching.

Law enforcement is generally required to obtain a search warrant prior to a search for evidence in areas or property in which a person has a “reasonable expectation of privacy,” as previously mentioned. Whether a person has a reasonable expectation of privacy depends largely on the facts and circumstances of each specific case.

Case law establishes that:

  • The home (under the theory that the home is one’s castle);
  • Certain parts of a motor vehicle (such as a locked trunk); and
  • Hotel rooms, among other places, are protected from warrantless searches and seizures performed by law enforcement.

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. This means that they are knowledgeable of specific facts which 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 people 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 specific 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. This must be done with reasonable accuracy, as a show of good faith.

There are some circumstances in which the police may conduct a search without first obtaining a valid search warrant. Some examples of such circumstances include, but may not be limited to:

  • The search is associated with a lawful arrest, such as when the arrest is made based on probable cause;
  • Search of a person’s vehicle, especially if there is a risk of the vehicle fleeing;
  • The defendant themself has consented to a search without a warrant;
  • The defendant is being stopped and frisked. However, it is important to note that 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 amount of time it takes to request a valid search warrant.

Do The Police Have To Announce A Search?

It is not necessary to announce a search when the police have a valid search warrant; they are allowed to enter and search the premises, even without knocking, ringing the doorbell, or announcing their presence. However, this rule only applies to federal searches that are strictly governed by federal laws.

It is important to note that each state may have its own statutes which differ from the federal rule, but are still based on its original premise. In general, the state equivalent of this standard is commonly referred to as the “knock and announce” rule. However, if law enforcement did not obtain a search warrant before performing a search of a person or their property, any evidence seized during the warrantless search may be barred from being used as evidence against a person in court.

While there are some exceptions to when a search can be carried out without a warrant, warrantless searches are generally considered illegal and invalid.

Can Another Person Give The Police Consent To Search My Property?

Determining whether another person can allow the police to search your property can be considerably difficult; such searches are commonly known as third party consent searches. A person may give the police consent to search your living area, but 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.

However, the same police would most likely need a valid search warrant in order 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. However, if police suspect that criminal activity is going on inside the home, such as the sound of a fight, they may be able to legally enter without permission.

What Else Should I Know About Search And Seizure?

If your vehicle has been impounded, the police may legally conduct a search of your vehicle. This includes any closed containers that are found within the vehicle, as well as the trunk, even if the police obtained your vehicle after it was stolen. However, the search must adhere to fair and reasonable standards; additionally, police may not pull you over and tow your vehicle simply in order to conduct a search.

The police may search your garbage when it is located in a place that is 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 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 that are found on the street, at a rest stop, or in a restaurant; and
  • In communal receptacles that are shared by tenants in an apartment complex.

Do I Need A Lawyer For Help With Search And Seizure Issues?

Once again, search and seizures must be conducted according to strict standards in order to protect your Fourth Amendment rights. If you believe your rights were violated by the police conducting an illegal search and seizure, you should immediately consult with a criminal defense attorney.

An experienced criminal defense attorney can help you understand your legal rights and options according to your state’s specific laws regarding criminal evidence. An attorney will also be able to help you file any necessary legal documents to exclude evidence obtained illegally, and provide you with representation in court as needed.


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