Illegal Search and Seizure FAQs
When law enforcement officers search the private property of a suspected criminal, there are rules that apply to protect that suspect's rights to be free from unreasonable search and seizure. If the search was illegal, any evidence gained during the search could be deemed inadmissible. These principles are derived directly from the Constitution, specifically the Fourth Amendment, as well as court opinions.
Below are some of the most common questions regarding police searches of a home, a car, or a person.
Frequently Asked Questions
- What if I refuse to allow a search?
- Will be charges be dismissed because of an illegal search?
- At what point are police considered "searching"?
- Is my private property really that private?
- The police told me they have a search warrant. What did they do to get it?
- What powers do police get when they have a search warrant?
- Are search warrants required for every search?
- My landlord/roommate gave the police permission to search my belongings. Was this search legal?
- During a traffic stop, can the police search my car and frisk me?
- My car was towed and impounded. Can the police search it?
The officer will either continue to search without your consent, which may or may not be legal, or the officer will give up the search for the time being. The officer may return later with a warrant.
Regardless of how an officer reacts to your refusal to allow a search, providing any physical resistance to a search will likely result in temporary detention or even an arrest.
Not necessarily, but it is possible for evidence that was obtained illegally will be suppressed at trial, which could lead to dismissal of charges.
On the other hand, an illegal search is not a grant of immunity from prosecution. Police might have enough evidence to support a conviction. Or they may find some exception to the exclusionary rule that would allow them to present the evidence uncovered during an illegal search.
Police conduct a search when they are looking for evidence or contraband. If evidence is found, but the defense claims that the search was illegal, the court will consider two questions:
- Was the person whose home, car, or property was "searched" expecting a degree of privacy?
- Was that expectation of privacy reasonable (usually based on societal attitudes)?
The expectation of privacy distinguishes what makes a warrantless search unreasonable. The "plain view" doctrine is the other side of this coin. Contraband or evidence that is easily visible to an officer standing outside a vehicle during a traffic stop, or at the front door of an apartment, is an example of "plain view."
If the person being "searched" was not keeping the contraband private, or if the expectation of privacy was not reasonable, then there was no "search" for purposes of the Fourth Amendment.
The Fourth Amendment protects the right to of people "to be secure in their persons, house, papers, and effects." So, possessions that are stored in a house, dwelling, or other building are generally considered to be private. If the police have to enter a building in order to get a look at something, they generally need a search warrant to do so.
However, there are situations where police can search and seize property without a warrant. Timely searches to prevent destruction of evidence are allowed because the situation demands prompt action by the police.
In general, law enforcement officers have been allowed to take aerial photographs from above a home. New drone technology has made this a controversial issue, however, as the quality and precision of drone photography seems to intrude upon privacy. A recent court decision found that low-flying drone photography could trigger the requirement for a warrant.
Technology can also be used to eavesdrop on conversations, but courts have set limitations. When listening to conversations, police cannot use hi-tech equipment to listen in private places without having a warrant. Otherwise, that act of surveillance is considered an illegal search.
Generally speaking, the more sophisticated the listening or photography equipment, the more likely it will be that the police will be required to obtain a warrant using it.
There is, of course, an exception for consent. When consent is provided to an officer who wants to search, the right to challenge the a warrantless is waived, even if damning evidence is discovered. Additionally, if an officer is present on private property for a legitimate reason (perhaps pursuing a felon), any contraband that is in plain sight is fair game to be seized, even without a search warrant.
A search warrant is a written order issued by a judge or magistrate that gives law enforcement permission to search a location or a person. A search warrant also gives law enforcement permission to seize not just evidence, but also people, contraband, information (digital or paper), and biological material. Some warrants permit police to use electronic surveillance devices.
The warrant is typically addressed to law enforcement, informing officers:
- Where they can search
- When they can search (often, only during business hours)
- When the temporary authority to search will expire
- What types of items and or people are sought by the warrant
- And any special conditions attached to the authority to search
Generally speaking, law enforcement agencies must apply for a search warrant before conducting a search of a person or premises. Police must show the judge that:
- There is probable cause that a crime has occurred
- Evidence or contraband linked to that crime will more than likely be found in the location to be searched, which must be described with enough detail to limit the scope of the search.
In order to support their application, police will need to provide information that is either based upon their own observations or the observations of others, including informants. If the police rely solely upon the observations of others, they must be able to demonstrate to the judge that the information is reliable. This could include police corroboration of the secondhand observations, or the prior reliable history of observations from a named informant.
A search warrant gives the police the legal authority to enter a premise without the permission of the owner. They have permission to search for the evidence listed in the warrant in the places authorized by the warrant.
For example, if the search warrant allows the police to search the bathroom of a home for illegal drugs, then the police should confine their search to the bathroom.
There are some exceptions to this search warrant rule which routinely allow police to conduct a wider search than allowed by the written search warrant.
- Police can search beyond the scope of the search warrant to ensure their own safety and the safety of others
- Police can search widely to stop the destruction of evidence
- Police can look for evidence beyond the scope of the original search warrant because their initial search revealed that there may be additional evidence in other locations on the property
- Police may search for more evidence based on evidence that is in plain view
No, not every warrantless search is an illegal search. Here are some situations in which law enforcement does not need a search warrant to conduct a search:
- Consent: If the police show up at a person's door and ask if they can come inside to look around, the police do not need a warrant if the resident allows them in. Consent must be freely given, not coerced, and can be withdrawn at any time.
- Emergency (also known as "exigent circumstances): If the police arrive in an emergency situation, they may not need a search warrant. For example, if the police are pursuing an armed suspect into a small neighborhood, they may not need a search warrant to search homes because the suspect could be putting residents at risk.
- Vehicle inventory search: When a vehicle is legally impounded by the police, they can perform a standard search of the vehicle's contents to document any valuable possessions within. Such a search is considered reasonable even without a warrant, and any evidence or contraband encountered during that search can then be seized.
- Searches incident to arrest: After a person has been arrested by the police, law enforcement may conduct a search of the person and his immediate surroundings to look for weapons that could endanger officers or others.
- Plain view: Police do not need a search warrant to seize evidence that is in plain view of a place where the police are legally authorized to be.
Generally speaking, any person with use and control of an area can give permission to the police to search the area. Who has use and control? The following criteria apply:
- Do they have possession of a key?
- Do they claim residence there?
- Is that address listed on their ID card or driver's license?
- Do they get mail or bills at that address?
- Do they keep clothes there?
- Do they have children that live there?
- Do they have personal belongings or pets there?
- Do they perform household chores at that residence?
- Do they pay rent or have their name on the lease?
- Are they allowed in the home even when the owner is not present?
If the police reasonably believe that the person who has given permission has control over the area searched, the search is legal. Even if the person is simply a dating partner with no legal rights to a home, if they have permission to be on the property when the owner is not present, they could give consent to search the home.
A landlord, however, cannot give legal permission to the police to search any part of a leased apartment. They can only give permission to search a common area, like a laundry room in an apartment building.
What about a hotel room? Even though hotel staff can enter a hotel room for cleaning or other ordinary purposes, a hotel manager typically cannot give police permission to search an occupied room.
Because the expectation of privacy is considered to be lower when operating a vehicle on a public roadway than it would be in a home, police are allowed to search a vehicle.
During a traffic stop, an officer can order the driver and passengers to get out of the vehicle and can frisk them if they believe they may be armed. In addition to frisking for weapons, the police can seize other contraband, like drugs, found during the search.
In the Supreme Court case of Arizona v Gant, the Court ruled that police can search the passenger compartment of a car if the driver is arrested and had access to that part of the vehicle, or if the vehicle contains evidence of the offense. In practical application, however, the Gant case doesn't limit the police's ability to search in any significant way.
In Carroll v. U.S., the court granted officers the right to search vehicles without a warrant if they had probable cause to believe that it contains contraband. Passengers may be exempt from searches if there is no probable cause to believe that they possess contraband or evidence of a crime.
If the police towed and impounded a car after a traffic violation or similar arrest, they have the authority to search the vehicle. It does not matter if the car was impounded for a parking violation or because it was stolen. The police can search any car if it has been impounded.
Police cannot tow and impound a car for the sole purpose of searching it. Moreover, the search must comport to the standard procedures of the police agency. For example, if they do not usually search of the glove compartment, an officer cannot search the glove compartment.
Get Legal Help If You Have Suffered an Illegal Search
An attorney can help you determine whether your rights were violated and can also protect you if charges are brought against you as a result of a search. Contact a local criminal defense attorney to discuss your specific situation and get personalized legal advice.
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