What Constitutes an Illegal Search and Seizure?

What is Illegal Search and Seizure?

The Fourth Amendment of the U.S. Constitution protects our right against an illegal search and seizure, but what does this mean exactly?

Illegal searches and seizures occur without proper authorization by legal authorities for the search or when a search or seizure is conducted outside of the boundaries instituted by laws or statutes. The Fourth Amendment was created to protect against searches and seizures committed during the American Revolution by British Soldiers.

Today, the Fourth Amendment protects us from law enforcement and other government entities that could overstep their boundaries and use illegal search or seizure to gather evidence to use against us in court. It protects personal privacy and every citizen from unreasonable government intrusion into their bodies, homes, businesses, and property.

An illegal or unreasonable search and seizure performed by a law enforcement officer is conducted without a search warrant or without probable cause to believe that evidence of a crime is present. If an arrest is made or evidence is gathered as the result of an illegal search or seizure, anything that comes as a result of that event is not admissible in court.

Search and Seizure Parameters

There are specific parameters that must be followed when a search and seizure is conducted. The specific protection provided varies based on the location of the search and seizure.

For instance, a person’s home can be searched and evidence seized if:

• Law enforcement has secured a warrant or if consent is given for the search;
• There is probable cause (smell of marijuana for example) for the search and exigent circumstances (evidence is being destroyed);
• There is an arrest; and
• Evidence is in plain view.

A person’s vehicle has less privacy than a home. A person’s vehicle can be searched without a warrant pursuant to a traffic stop if there is probable cause to believe the vehicle contains evidence of a crime.

During a legal traffic stop, law enforcement has the right to pat down the driver or any passengers in the vehicle, even if there is no suspicion of illegal activity beyond the traffic violation. Law enforcement is also permitted to use a narcotics detection dog regardless of whether there is suspicion of drugs present.

It is also legal to briefly stop and question someone when law enforcement reasonably believes that criminal activity might be afoot. Whether or not a further search would be legal depends on the specific circumstances that develop during that questioning.

Additionally, the vehicle can be searched that is incident to a lawful arrest. Often while an officer inventorys the vehicle for personal contents before a tow, evidence of a crime can be recovered.

Speak with an Experienced Attorney

There are many factors involved in search and seizure. An experienced attorney can help you determine if a search or seizure conducted against you was legal. For more information or to speak to someone about your situation, contact Gary Tabakman at (713) 429-1624 to learn more.