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Search and Seizure Top Questions

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What is “Search and Seizure”?

Search and seizure refers to activities conducted by the police for the purpose of obtaining evidence in a criminal investigation.  A police “search” occurs where the police scan a person’s body, belongings, or property in attempts to find evidence.  In most cases, police need a warrant before they can lawfully conduct a search of a person’s home or property. 

Seizure is where the police actually obtain possession of an item of evidence during a search.  The item may then be held by police authorities for the duration of the criminal trial.  Most of the times, search and seizure occurs simultaneously; however, not all searches lead to seizure of evidence. 

Under the 4th Amendment, police may not conduct a search and seizure without a warrant, if the person has a “reasonable expectation of privacy” in the property.  

What’s a Search Warrant?

A search warrant is an official document, usually issued by the judge, which grants police the constitutional right to conduct a search and seizure of property.  In order to obtain a search warrant, the police need probable cause that the property being searched contains evidence that is needed for a criminal case.  Besides probable cause, another requirement for obtaining a warrant is that the police need to describe the place to be searched, and the property that is to be seized with reasonable accuracy. 

Is a Search Warrant Always Required?

No- there are some circumstances where the police can conduct a search without first obtaining a warrant.  Some situations where a search warrant is not needed include:

  • The search is made in connection with a lawful arrest (i.e. the arrest is based on probable cause)
  • Search of an automobile, especially if there is risk of the car fleeing
  • The defendant consented to a warrantless search
  • If the defendant is being “stopped and frisked” (search is limited to “plain feel”)
  • The evidence is in “plain view”
  • There is risk that the evidence may be destroyed or that the suspect will flee

Can Another Person Grant the Police Permission to Search my House?

A person can grant the police permission to search your living area only if they are the person in charge of the premises (such as a landlord).  For example, if your landlord or roommate share common areas like the living room, the police can search that area, since the person has some degree of control over that area.  However, they may need a warrant to search your separate bedroom, if your roommate doesn’t have control over that area.

On the other hand, if the police suspect that criminal activity is going on inside the house (such as the sound of a fight or the smell of marijuana smoke), they might be able to enter without permission, though this may depend on the circumstances. 

Can the Police Search my Car if it’s Been Seized or Towed?

Yes- if your car has been impounded, the police may conduct a search of your car, including any closed containers found within as well as the trunk area.  This is true even if the police obtained your car after it was stolen.  However, the search must follow fair and reasonable standards.  Police may not pull you over and tow your car simply to conduct a search. 

What Happens if Evidence is Illegally Searched or Seized?

If evidence is illegally seized, it cannot be used as evidence in court.  This is known as the “exclusionary rule”, which states that evidence obtained from an illegal search must be excluded from evidence during trial.  One of the most common applications of this rule is where the police fail to obtain a search warrant before conducting a search and seizure. 

Do I Need a Lawyer if I Have and Search and Seizure Questions?

Search and seizure must be conducted according to strict standards that the police must follow.  If you have any questions regarding the search and/or seizure of your property, you may wish to contact a criminal lawyer for advice.  An experienced criminal attorney in your area can provide you with legal advice and can represent you in court if necessary.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-24-2018 05:34 PM PDT

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