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Searches and seizures are an integral aspect of criminal law. They are how police find the evidence prosecutors need to convict people of crimes. Because prosecutors need evidence against you, some police officers are generally willing to do whatever they need to in order to perform a search and seizure—and in some cases this results in them bending the rules or acting unlawfully. The police will perform a search whenever they can to find evidence, and it is up to your lawyer to determine whether the search and seizure was legal.
To discuss the legality of the search and seizure in Mecklenburg County and surrounding areas that led to evidence being found and used against you, contact Randall & Stump, Criminal Defense Attorneys at (980) 237-4579 or contact us online. We are highly experienced in illegal search and seizure cases. We will carefully review your case to determine if a search and seizure was unlawful. If it was, we will fight hard for the resulting evidence to be ruled inadmissible in court.
A “search and seizure,” which is really two things, is a legal term regarding when law enforcement officers may look or “search” for evidence of a crime in a particular area and what evidence they may confiscate or “seize” as a result of the search.
A search is just that—the police search for physical evidence that supports the assertion that you committed a crime. Very often, this physical evidence is drugs, alcohol, guns, weapons, or other items that support your involvement in the alleged crime. It may also be particular clothing, tools, devices, documentation, photos, videos, or digital files. When a search takes place, it is confined to a certain area. This could be your person, your vehicle, an electronic device you own, or within your home. It could also be all of your property, such as your home, detached garage, land, and storage shed. Where the police may search depends on the circumstances, including their reason for the search, your alleged crime, and what they are looking for.
A seizure occurs when the police find potential evidence during a search and take possession of it. Normally, the police do not have a right to simply take your stuff. However, through a lawful search, the police are allowed to take your things that could be relevant to proving you committed a crime. If the police take possible evidence during an illegal search, then it cannot be used in court. This is known as the doctrine of Fruit of the Poisonous Tree.
There are many legitimate reasons the police may have for conducting a search. However, they cannot perform searches and seizures whenever they want. If you suspect an illegal search and seizure, you should contact a criminal defense attorney to discuss your Fourth Amendment rights. 980-237-4579.
The Fourth Amendment of the U.S. Constitution states:
“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.”
The Fourth Amendment is essential to protecting a certain degree of privacy. Based on this amendment, law enforcement agents cannot search or seize you or your property, to include your home, vehicle, office, and other personal affects, without first having probable cause to believe the search or seizure may result in evidence being found, related to an alleged crime you are believe to be involved in committing.
To be clear, there are many situations in which the courts have found it is reasonable to search these areas. You are only protected from an unconstitutional search and seizure.
If you were subject to a search and seizure, you should speak with a criminal attorney about whether it was lawful or not. If there is evidence that it was unconstitutional—and therefore unlawful—search and seizure, then you may be able to have certain evidence excluded from your case. If the inadmissible evidence was most or everything the prosecutor had against you, then your attorney may seek to have the charges dropped or dismissed.
Over the years, there have been many court cases regarding when the police can search people’s homes, offices, vehicles, school lockers, and other personal areas and affects. These cases have clarified when the police can perform a search and seizure with or without a warrant.
Some of the ways in which the police may lawfully perform a search and seizure include:
The standard for when law enforcement agents can search a private area is by obtaining a search warrant. Under the Fourth Amendment, warrants must be based on probable cause that you were involved in committing a crime and that evidence will be found as a result of the search. Officers obtain a warrant by taking what information they have to a judge. If the judge agrees there is probable cause, they will sign a piece of paper that describes where the agents may search and the evidence they are looking for.
A common exception to the warrant requirement is when officers have probable cause you committed a crime during a traffic stop. You do not have the same right of privacy in your vehicle as you do in your home. The courts have decided you have a lesser right to privacy in a car, which enables the officers to meet a lower standard for a car search. If you have been pulled over and the facts support you have committed a crime, such as a DWI or drug possession, the officers may search your car for evidence of that crime. However, they may only search for evidence of that specific crime. It is important to note that if the officers walk up to your car and smell or see something, such as marijuana smoke or a bag of cocaine, they do not need to get a warrant. However, a traffic stop does not automatically allow officers to search your car. Simple traffic violations are not enough. The police cannot search your car because you got caught speeding, driving through a stop sign, or driving with a brake light out. If they search your car without evidence to support the search, this is an illegal search and seizure in a vehicle, and you should contact a criminal defense attorney immediately. 980-237-4579.
The police can conduct a search and seizure without a warrant if there is evidence of a crime in plain view. Plain view means they can see it without moving anything or entering into the private area. For example, if the police can see a baggie of drugs through the window of your car, they do not need a warrant to search your vehicle. Or, if the police walk up to your home and can see you committing assault through the window, they do not need a warrant to enter your home.
Similar to the search and seizure laws surrounding traffic stops, the police may be able to search your person if you have been lawfully arrested for a crime. There needs to be a reason to perform the search though. In most situations, the police will state that they performed a search after an arrest for their own safety. They will pat you down, look in your pockets and bags for weapons. An arrest, though, does not automatically give the police the right to search your vehicle. Unless the police believe that evidence related to your arrest will be found in the car (i.e. drugs), they will need additional probable cause for the search.
Another common exception to the warrant requirement is exigent circumstances. These are circumstances that would make a reasonable person believe that entering someone’s home, office, or other area was necessary to prevent harm, a suspect’s escape, destruction of evidence, or other actions that would frustrate the police officers’ efforts. Exigent circumstances are not as intense, obvious, or big as you may think. Small things can enable a police search without a warrant. For instance, the police may knock on your door, and as you open it, they hear someone run out the back door or flush a toilet. This could be all they need to force themselves in without a warrant.
The police are allowed to confiscate evidence during emergency circumstances in which that evidence could be easily altered, moved, or destroyed. Also, when the police are chasing a suspect, that person may go onto or in private property. The police do not have to stop and obtain a warrant to follow the suspect—they can follow the suspect onto the private property without a warrant.
A significant exception to the warrant requirement is when you or another adult give the police permission to conduct a search. You never have to consent to a search of your person, vehicle, home, or office. If the police ask to look through your car or come into your home, you have every right—and you should—politely say “No, I do not consent to a search. I am not giving permission for a search.” Speak clearly in front of the police officers so that your response is picked up on their body cameras. However, you need to be aware that any adult with authority in the area can give permission for the police to enter your home without a warrant. If you live in a home or apartment with other people, a family member or roommate who is over 18 years old can let the police in to search. If you or another adult with the right to do consents to a search, none of the evidence can be thrown out in court.
The law surrounding stop and frisks, also known as Terry stops, is a part of the overall U.S. search and seizure law. However, there are major differences between a stop and frisk and a search and seizure of your home or vehicle.
A “frisk” means the police officers pat you down. They are patting you over your clothing to feel for knifes, guns, or other weapons. This does not constitute a search, which would require looking under your coat or shirt and in your pockets.
However, officers cannot conduct a Terry stop whenever they want. They must have reasonable suspicion that a crime has been committed, is currently being committed, or is going to be committed soon. This reasonable suspicion allows the police to stop you and briefly detain you. Then, if they have reason to suspect you are armed, they can pat you down.
It is hard to know what to do when you are dealing with the police. You never want to make the situation worse. However, letting the police do anything they want is not the answer.
If the police ask if they can conduct a search, it means they do not have probable cause or another exception to the warrant requirement. They are asking because it is the only way they can lawfully conduct the search. You can and should say no.
If you believe you are being subjected to an illegal search and seizure, you can verbally protest. You can say “I do not consent to a search.” This is particularly important when the officers are wearing body cameras. Your statement that you do not give permission for a search may be used to exclude the evidence later. When you are free to do so, call a defense attorney right away.980-237-4579.
Do not try to argue with the police or physically prevent them from conducting a search. Do not do anything that could be seen as escalating the situation or placing an officer in danger. We understand it can be extremely frustrating to sit back and do nothing while the police violate your rights. However, the time to hold the police accountable will be in court.