What Makes Search & Seizure Lawful?

The police and other authority figures exist to help keep law and order in our land, but what stops them from simply barging into your home to check and see if you are doing something illegal? The answer lies in the Fourth Amendment of the Constitution, which protects citizens from “unreasonable searches and seizures.” This guarantees people their privacy from law enforcement and prohibits authorities from conducting an unwarranted search of your home, car, office, or any other location.

The Fourth Amendment of the U.S. Constitution reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." There are two very distinct parts to this Amendment, which we will detail here.

What Is Protected?

The first part of the Amendment grants all citizens the right to security in their property, be it their home, their car, their papers, and even what they have in their pockets. This means that authorities are forbidden from searching you or your property without reason, known as “probable cause.”

It is this very principle that can cause seemingly-insurmountable evidence to be thrown out of a case and be forbidden from consideration in jury deliberation. If police fail to follow procedures or do not have a good reason to conduct a search, then any evidence that was obtained through that search can be suppressed.

What Isn’t Protected?

On the flip side, the Fourth Amendment creates a provision for times when the police may override your right to privacy, or when a search and seizure is warranted. In order to do so, the police must have “probable cause,” or believe they can find evidence that you committed a crime through their search.

This can come in two ways. For most criminal charges, the authorities must obtain a search warrant from a judge, who listens to their reasoning and determines if a warrant is permissible. The second is when the circumstances justify a search without needing a warrant (i.e. a police officer stopping a driver they suspect is intoxicated and subjecting them to a breathalyzer test).

The Fourth Amendment also only applies when someone has a “legitimate expectation of privacy.” There is a two part test to determine if this applies: 1- did the person actually expect some degree of privacy, and 2- is the expectation of privacy objectively reasonable by society’s standards.

To better understand this, let’s look at an example. Say the police pull over a vehicle for speeding. While the driver is rolling down his window, the officer notices a weapon sitting in plain view on the passenger seat. At this point, the officers could reasonably conduct a search and seizure on the vehicle, and the weapon could be permissible as evidence. The reason for this is because society does not consider the front seat of a car in plain view to be a location where someone could expect privacy. However, this could be considered grounds to obtain “probable cause” and justify a full search of the vehicle. If the vehicle’s description matches that of one that was recently spotted fleeing the scene of a bank robbery or some other crime scene, you can bet the police will probably conduct such a search.

Violating the Fourth Amendment

If a search is deemed to have violated the Fourth Amendment, any evidence cannot be used against the defendant at a trial and is fully suppressed through what is known as the exclusionary rule. On top of that, any supplemental evidence that is obtained because of this illegally-procured primary evidence is also inadmissible through what is known as the “fruit of the poisonous tree doctrine.”

If you or a loved one has been arrested and charged with a crime after evidence has been found through a search and seizure, you should not hesitate to speak to a Modesto criminal defense attorney as soon as possible. Attorney Mark Girdner understands the importance of having an experienced ally to help you protect your rights and freedoms. Search and seizure cases can be complex, and Attorney Girdner will review all of the facts in your case to determine if your evidence may have been acquired illegally, and work tirelessly to have this evidence thrown out to prevent it from working against you.

Learn more about your legal options today! Call the Law Offices of Mark Girdner at 209.326.1533 to schedule your free initial consultation.
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