101 Marietta Street NW, Centennial Tower, Suite 3325, Atlanta, GA 30303
Lowther | Walker Logo

What Is Search and Seizure?

As part of the Bill of Rights, American citizens are protected from unreasonable searches and unlawful seizures. While this portion is straightforward, the laws surrounding search and seizure can be complex, and many assumptions are not accurate. When law enforcement misuses these processes, it can be enough to have a case thrown out or significant evidence deemed inadmissible. In any case where search or seizure becomes relevant, it is critical to have a skilled federal criminal defense attorney on your team to help you determine if all laws and guidelines were followed.
What Is Search and Seizure

The Fourth Amendment

Protections regarding search and seizure are laid out in the Fourth Amendment to the United States Constitution. The text of this Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search 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 person or things to be seized.”

In this context, search can apply to any property that is evaluated, while seizure refers to the taking of something into custody. This can be evidence that is collected or a person who is arrested.

These provisions were included in the Amendment as a way to protect privacy by protecting against unreasonable search and seizure by state and federal law enforcement authorities. At the same time, the Fourth Amendment permits reasonable searches and seizures. This gives police the ability to override privacy concerns and conduct searches of you, your home and other property, your paperwork, your trash, or anything else. This can only happen if the police have probable cause to believe they will find evidence you committed a crime and a judge issues a warrant or if the particular circumstances justify a search without a warrant being issued first.

What Is Probable Cause?

Probable cause is established when law enforcement can point to objective circumstances that lead them to suspect someone committed a crime. They then present this evidence to a judge who determines whether or not probable cause exists.

Whether probable cause is present is determined on a case by case basis, usually before a warrant is issued, though in some cases, it may be determined after the fact.

Does The Fourth Amendment Always Apply?

The Fourth Amendment applies only to searches wherein the person has a “legitimate expectation of privacy” surrounding the place or thing searched. When this is not true, there is no protection. This is usually determined by a two-part test that determines where this legitimate expectation exists:

  • Did the person actually expect privacy?
  • Is the person’s expectation objectively reasonable in society?

  • For example, when you use a public restroom, you have the right not to be spied on. This is generally considered reasonable, and something like a hidden video camera would violate your privacy in this case. Even if you performed an illegal activity in the restroom, your right to privacy would protect you from a search that used that tape. However, if you are pulled over by a police officer who notices a weapon or drug paraphernalia on the passenger seat, the open nature of your vehicle would not grant privacy.

    Who Can Carry Out Search and Seizure?

    In the United States, there have been times when private security personnel outnumber police officers by three to one. You may see these personnel working in office or residential buildings, in stores, or even patrolling a neighborhood. It is not always obvious whether they are a police officer or private personnel. However, the Fourth Amendment does not apply to searches carried out by non-governmental employees who are not acting on behalf of the government.

    For example, imagine a shopping mall security guard who sees a teenager and feels, with no objective evidence, that they have shoplifted. The guard could detain the teenager and open their backpack, where they find stolen goods or illegal drugs. They can then call the police, and the item would be admissible in court because they acted on their own and not at the behest of the government.
    Who Can Carry Out Search and Seizure

    Consequences of Unreasonable Search and Seizure

    If it becomes apparent that a search performed by an officer was illegal, it can have a number of effects on a case. A number of rules exist for these scenarios.

    The Exclusionary Rule

    If a court reviews evidence and finds that an unreasonable search occurred, any evidence seized during that search cannot be used as direct evidence in a criminal prosecution. This rule was established by the Supreme Court of the United States in 1961 and has been controversial since that time. The goal is to dissuade police from conducting illegal searches and ensure the proper steps are taken. There are exceptions to this rule for “good faith” searches.

    Fruit of the Poisonous Tree Doctrine

    In addition to any seized evidence being inadmissible, any evidence derived from the initial evidence can also not be used. For example, if someone is suspected of selling phony gift cards, a police officer may unlawfully enter their home and seize a map that shows the location of the gift cards. Using the map, the officer may then find the cards themselves. Because the map was obtained illegally, the map and the gift cards are both inadmissible in court.

    There is a common belief that if a defendant can show a search was illegal, the case will be dismissed, which is not accurate in all cases. If a prosecutor has enough admissible evidence, the case can continue, and a defendant may still be found guilty. Judges can also consider illegally seized evidence when they determine a sentence following a conviction. Civil cases and deportation cases can also use this evidence. In some cases, a prosecutor may even be able to use the evidence to attack the credibility of a defendant who testifies during trial.

    An experienced defense attorney will be able to examine the evidence and determine what may or may not be admissible based upon rules of search and seizure and apply these laws to your case.
    Consequences of Unreasonable Search and Seizure

    Experienced. Aggressive. Successful. Nationwide.
    linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram