Unlawful search and seizure what is it?

Recently on our legal forum a user asked, “The police came into my home without a warrant. Now I have been arrested on several drug charges. I need to know my rights. I thought I was protected against unlawful searches and seizures. Can you give me more information about my legal rights?”

Overview of the Fourth Amendment of the U.S. Constitution

The Founding Fathers understood that a fundamental right of the American people to pursue “life, liberty and happiness” was the right to protect their personal property from illegal searches and seizures from the state and federal government.  

Specifically, the Fourth Amendment of the United States Constitution states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Like all protected Constitutional freedoms, however, there are several exceptions. For example, while the police are generally barred from illegal searches and seizures, this doesn’t mean that the government can NEVER search your home and person.

Let’s take a look at some specific examples when the Fourth Amendment may not protect you from a search and seizure.

Searches and seizures may be allowed under specific conditions

  1. The police have probable cause that a crime has been committed and the court has issued a warrant. 

Current laws require police officers to offer reasons for the search, referred to as probable cause. Probable cause is the reasonable belief that a person has or will commit a crime. Probable cause can be established by observation, circumstantial evidence, and witness information.

If the court agrees to issue a search warrant, the court must specifically outline the reasons for the search, acquire sworn affidavits from the officer, and provide detailed information regarding the search, including the place, individual and items to be searched.

  1. There was not a legitimate expectation of privacy.

Searches may be conducted in areas where individuals have no expectation of privacy. The U.S. Supreme Court will review two questions: Did the person have an expectation of privacy and is the expectation reasonable and recognized by society at large?

  1. The search is conducted by a non-governmental employee not acting on behalf of the government.

It’s important to note that the Fourth Amendment offers protection from illegal searches and seizures from government officials. Certain other individuals including security guards, employers and landlords may have legal authority to conduct certain limited searches (although under certain conditions their actions may extend past their legal rights and they may be held civilly or criminally liable for invading your privacy.

  1. You consented to the search.

If an individual consents to a search they have forfeited their rights and cannot challenge the legality of a search or seizure on Forth Amendment grounds. It’s also important to note that police officers are not legally required to tell you that you have the right to refuse a search.

Unfortunately, it’s not uncommon for Americans to have no idea of their rights to refuse a search. Add this to the fact that police officers can be extremely persuasive and persistent, although they are barred from forcing a search by using fraud or coercion. Bottom Line: you must agree to the search “freely and voluntarily” for the court to argue that you “consented.”

  1. There is an emergency exception.

A police officer may, under some conditions, conduct a search without a warrant if it will take too long, public safety is at risk, or evidence may be destroyed.

Search and seizure laws are confusing

Unfortunately, the rights citizens have under the Fourth Amendment can be confusing and controversial. Think your person is protected from unlawful searches? Not in states which have authorized “stop and frisk” where police officers need very little reason to conduct a search.

Searches of vehicles are even less protected then a person’s home. For instance, we’ve all heard stories about officers who pull a driver over and then decide to search the car based on reasonable suspicion, which may be as dubious as “I smell of marijuana in the car.”

Bottom Line:

If you believe your home was illegally searched it’s time to talk to a criminal lawyer. Under some conditions, evidence illegally obtained in a search may not be admissible in a criminal case.

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