Search and Seizure
“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.”
Fourth Amendment – United States Constitution.
Under the Fourth Amendment, searches and seizures may only take place under certain conditions. A warrant must be obtained from a court. The court will not issue the warrant without probable cause and a sworn statement (affidavit or recorded testimony) describing what is known in the case, the scope of the warrant, i.e. what place is to be searched and what is being searched for, or what person is to be arrested.
Much time and discussion could be spent on what constitutes probable cause, since the term is somewhat fluid and even the U.S. Supreme Court has attempted to clarify the meaning in several cases. For the purposes of this discussion it can be defined as information from an investigation that would lead a reasonable person to conclude that a violent crime has been committed and the search being undertaken will produce evidence of the crime.
If probable cause is not present, the search can be found to be defective and under the exclusionary rule, evidence obtained from the search, if any, will be suppressed and excluded from the testimony in a trial of the person involved.
There are times that a reasonable search may take place without a warrant. Warrantless searches can be found valid in certain circumstances. A warrantless search can be carried out:
- If there is consent to perform the search
- If the search is incident to an arrest
- Under exigent circumstances, which means, taking the time to obtain the warrant would allow a suspect to escape, or would lead to destruction of evidence.
- If evidence of a crime is in plain view
- Hot pursuit means that a suspect is fleeing the police and the police are pursuing the suspect. Police may enter a dwelling where they believe the suspect is located without a warrant.
- Automobiles may be searched without a warrant upon reasonable belief of a crime, a lesser standard than probable cause; due to the mobile nature of a vehicle, and the courts have found that vehicles provide a lesser expectation of privacy than a home. Consent is still a factor, and the court may find a warrantless vehicle search without consent to be unreasonable and suppress any evidence obtained in the search.
Under the law, police cannot randomly stop and frisk people to attempt to find incriminating evidence on their person, because there is no probable cause to do so. However, courts may rule in favor of the police in many such circumstances. An unreasonable search and seizure requires the skills of a highly qualified attorney to defend against. In many cases, searches and seizures accompanied by a warrant can be found defective. If you have been subject to a search by law enforcement and you did not give consent, you need to contact a lawyer to defend you in court. The Defenders can provide a vigorous and persuasive defense, which improves your chances of success in court. Call us to discuss your case today at (702) 333-3333.