When Is Search and Seizure Lawful?
A citizen’s rights under the Fourth Amendment allow him or her protection from police officials and other law enforcement conducting unlawful search and seizures. Essentially, this is to ensure the client is entitled to privacy from the government. Still, the law allows these officials to continue some instances of search and seizure to happen.
For example, an officer or some other government worker is barred from conducting a search of your personal property, but a non-government official, such as your employer, can still search or infringe on your privacy, or a “legitimate expectation of privacy.”
That means that the party intending to do a search on you has reason to believe that you or your possessions must be searched. That is when the government does have the right to carry out the search.
Are warrants mandatory for search and seizure?
If the search is being initiated by a law enforcement official, then they will most certainly need a warrant issued. First, the officer will bring the case before a judicial review member. That judicial member can decide whether or not the claims made by the officer has merit, i.e. probable cause.
Warrants will usually contain the following:
- Reasons why the a search is necessary
- Officer affidavit or sworn oath that there is probable cause
- Identification of the person, location, and what possessions need to be searched
The judicial review can make the decision to approve or deny the issuance of the warrant. Oftentimes, this is due to a weak argument for probable cause. Yet, here is a crucial element you must be aware of. Even if, for whatever reason, a warrant is later found to be invalid, any evidence recovered in the search cannot be used against someone accused of committing a crime. This is known as the “exclusionary rule.”
How else can I argue that my search was illegal?
Let’s say, for example, an officer pulls someone over and asks to search their vehicle. They must have probable cause to search the car; for example, he or she claims that they detect the scent of marijuana in the car. Officers can even reason that the driver simply looks suspicious. There is little time for the officer to obtain a warrant and thus they feel compelled to act quickly on any inkling of suspicion.
If you allow the officer to search your vehicle, your home, and other possessions, you have given your “consent” to the search. Officers have absolutely no obligation to tell you that you do not have to submit to the search, especially if the officer has not obtained a warrant. By consenting, you also give up the right to argue that the search was done unlawfully.
It is important that you understand all of your rights in greater detail under the Fourth Amendment, especially with regards to illegal search and seizure procedures.
For more information about how the experienced St. Louis criminal defense lawyers at The Hammer Law Firm, LLC can provide you with greater legal insight, feel free to contact us at any time.