Illegal Search and Seizure: What the Police Can and Can't Search

Jan 11, 2019

If you watch crime television shows, you’ve heard the term search and seizure. However, you may not understand how serious this process is in a criminal case.

Search and seizure refers to a police officer’s investigation of someone’s residence, vehicle, or workplace in an attempt to discover evidence of a crime. If this evidence is found, the police may seize it and use it against that person in court. A seizure can also involve placing someone under arrest.

This may seem pretty straightforward, but there are laws the police must follow when conducting searches. This is where things get a little blurry.

If you’re subjected to illegal search and seizure, you may be able to have your case thrown out. Let’s break down this law so you fully understand your rights.

Understanding the Fourth Amendment

Every U.S. citizen has a right to privacy under the Fourth Amendment. It protects citizens from unreasonable search and seizure by law enforcement authorities. These can be either state or federal officers.

This means the police cannot enter your home or search your belongings without a warrant. However, there are some exceptions to this law.

If a search and seizure is reasonable, police can legally search your private property, seize evidence, and make arrests. In these situations, your privacy rights no longer apply.

The main issue is the word “reasonable.” A reasonable search and seizure can only happen if:

  • The police have probable cause and attain a warrant
  • Circumstances justify the search should happen without a warrant

If the police fail to abide by these conditions, they’ve violated your Fourth Amendment rights. Thus, an illegal search and seizure has occurred.

Search Warrants

It’s important to understand what a search warrant is when determining between lawful and unlawful searches and seizures.

A judge orders a search warrant to give the police authority to enter and search a property. It also allows the police to seize evidence and make arrests.

However, search warrants aren’t given out blindly upon request. The police must apply for a warrant first.

In doing so, they must show there’s probable cause that criminal activity has occurred. They must also show that evidence of the crime exists in the location the warrant targets.

The police must provide adequate information to the judge that probable cause or evidence of a crime exists. This information comes from their own observations or from those of an informant.

This is why it’s advisable to ask for a search warrant if the police try to enter your property. By law, they cannot enter to perform a search and seizure without one.

When the Police Have a Search Warrant

If the police obtain a search warrant, they can legally enter your premises without permission from you or anyone else.

However, they can only enter the places listed on the warrant. For example, if the warrant specifies the garage of your residence, the police can only legally search the garage.

There are some exceptions to the legality of a search warrant. The police can search in areas beyond what’s detailed in the warrant in order to ensure their own safety.

Furthermore, they can move into different areas in order to put a stop to the destruction of evidence. They can also pursue evidence that’s in plain view.

Finally, the police can search in other areas if their initial search revealed the evidence is in another location on the property.

Conducting a Search Without a Warrant

As you can see from the above section, the rules surrounding search warrants come with a number of exceptions.

Yes, law enforcement cannot conduct searches without a warrant, for the most part. There are even conditions to this law that make a warrantless search legal.

One of the most common conditions is consent. When law enforcement officers come to your door and ask to search the premises if you say yes, they can legally perform a search.

If the police enter your property in the event of an emergency, they don’t need a warrant. A good example is if they’re pursuing someone and believe them to be in your home.

If you’re arrested, the police don’t need a warrant to search your person or the surrounding area for weapons or other evidence.

Traffic Stops

Unlawful search and seizure can also occur in vehicles after a traffic stop. Again, there are some conditions involved.

If officers are suspicious that you’re armed, they can lawfully search your person for weapons during a traffic stop. They can also frisk you for other paraphernalia.

When it comes to searching your vehicle, there are additional conditions.

A legal search of your vehicle can happen if you’re within reaching distance of your car at the time of your arrest. This means the police cannot search your vehicle if you’re away from it when arrested.

In addition, a legal search can take place if the police have reason to believe evidence of the offense is in the vehicle. This means that unless you’re arrested for a crime, the police cannot search your vehicle looking for evidence.  

When Illegal Search and Seizure Occurs

If evidence was collected without a warrant, the exclusionary rule comes into play. This rule prevents any unlawfully obtained evidence from getting admitted in court.

The exclusionary law works to prevent law enforcement from conducting unlawful searches. However, it still happens quite frequently.

If you got arrested for a crime, an illegal search and seizure can have a huge impact on your case. It’s important you hire an experienced attorney to evaluate the details of your arrest and determine if law enforcement violated your rights.

Work With a Skilled Criminal Defense Attorney

Understanding search and seizure requires an intimate knowledge of criminal law. If you feel an illegal search and seizure took place during your arrest, you need an experienced attorney to protect your rights.

Remember, police have to follow laws too. Don’t let and unlawful search ruin your future.

We provide high-quality criminal defense representation in South Florida. Contact us today to schedule a consultation.