You have rights: Understanding search and seizure laws

On Behalf of | Jan 24, 2019 | Criminal Defense

Talking to police is intimidating. They can make you feel like you do not have any options when it comes to answering questions or allowing a search of your property. But this is not true. You have rights.

What is an unreasonable search and seizure?

This is when law enforcement searches you or your property without having a warrant or probable cause to do so.

An illegal search and seizure is a direct violation of your Fourth Amendment rights. Basically, an officer needs to have reason and cannot just come up to you and ask to search your belongings because he or she feels like it.

If an officer violates your Fourth Amendment rights and obtains evidence illegally, you can push to have this evidence thrown out.

What does an officer need to be able to perform a search?

To legally gather evidence, an officer typically needs one of three things:

  • A valid search warrant
  • A valid arrest warrant
  • Probable cause

It is this last one that can be tricky sometimes, as this is a warrantless search. However, there are still rules around when an officer can rely on probable cause as the reason for the search.

What is probable cause?

Probable cause means the officer knows about specific facts and circumstances that would lead a reasonable person to believe that the person in question either committed a crime or that a crime took place at a certain location.

Notice here though that we are talking about facts and circumstances. Not hunches and speculations.

The exceptions: No warrant and no probable cause

There are situations where an officer can search, arrest or obtain evidence without a warrant or probable cause. However, this can only happen to:

  • Ensure the safety of the officer and the public
  • When an object is in plain view
  • During an emergency
  • If you — or someone else in charge of the space, like a roommate — gives consent

Pay very close attention to this last point. If you give consent, you are giving up your Fourth Amendment rights. If you say it is OK for an officer to search your property and the officer finds something illegal, this will be used against you. The same also goes for answering police questions. It is incredibly easy to implicate yourself without even realizing it, which is why it is important to have an attorney present before answering questions.

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