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Can You Sue a Cop for an Illegal Search?

By George Khoury, Esq. | Last updated on

Thanks to the Fourth Amendment to the US Constitutional, individuals are guaranteed protection from unreasonable search and seizure. This right not only requires federal, state, and local law enforcement to meet specific requirements before conducting a search, it also permits individuals to sue the police when an officer conducts an unreasonable search.

One officer and police department in Dunwoody, Georgia, a suburb of Atlanta, are learning some hard and expensive lessons about the limits of reasonableness. Recently, the department settled the fourth lawsuit against them related to an illegal search. The most recent settlement was for over $50,000 and resulted from a traffic stop where an officer claimed to be searching for marijuana. Last year, a six figure settlement prompted department-wide changes that require officers to get approval before extending a traffic stop to hail a unit with a drug sniffing dog.

For a search to be legal, law enforcement must have probable cause and a search warrant, or probable cause and exigent/particular circumstances. To get a warrant, an officer must provide the courts with a statement of probable cause sufficient to justify a search, as well as a detailed description of what evidence is sought and where it is located. Then, a judge will review the warrant petition and approve or deny the warrant.

Under certain circumstances, such as when an officer has probable cause and reason to believe evidence is being destroyed, or evidence of a crime is in plain sight (or maybe even smell), a warrant may not be necessary to conduct a legal search. Additionally, an officer does not have to be right about exigent circumstances, or seeing evidence in plain sight, but they do no need to hold a good faith belief regarding the circumstances.

When Searches Cross the Line

If a search was conducted without probable cause, then the individual searched may have a civil rights claim under 42 USC 1983 for the violation of their Fourth Amendment rights.

In addition to being searched, the Fourth Amendment prohibits law enforcement from deliberately extending traffic stops without reasonable suspicion, in order to have a drug-sniffing dog arrive at the scene to do a sniff (which if done outside the vehicle is not considered a search).

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