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The Basics of Search & Seizure Laws


The founding fathers of our country were adamant believers in individual freedom, and went to great lengths to preserve it. They firmly believed that freedom meant not having to worry about the government or authorities intervening in your life without a legitimate and necessary reason, and for that reason they framed the Constitution in such a way that it severely limited the size and scope of power the government and authority figures hold. One way they did so is by protecting citizens from “unreasonable search and seizure,” giving them the right to total privacy and control over their possessions. On this blog, we’ll examine what this right might mean for your case if you’re arrested.

The Fourth Amendment to the Constitution

The Fourth Amendment reads as follows: “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.”

This extremely small but fairly straightforward guarantee cuts down on what the government and law enforcement have the ability to do in their pursuit of justice. The founding fathers decided to include this amendment in hopes of not only cutting down on the worry of a tyrannical government suddenly arresting and seizing things without regard for privacy, which in turn helps keep the people in power over their government, not the other way around.

How it Works

Let’s break the amendment down and explain how it’s applied in modern criminal law. The first part of the single-sentence amendment guarantees you the right to security and privacy of things in your possession, including things in your pockets, in a backpack, in your car, or any other space where you own and have control. Law enforcement do not have the right to stop you and search you to try and find evidence of any wrongdoing in order to make an arrest.

Search Warrants

However, if law enforcement can’t search you or your home for evidence, what’s to stop criminals from simply shielding evidence from view in order to prevent themselves from getting arrested? Well, the founding fathers took that into account as well and made a provision that grants an exception to this right to privacy: the warrant, or as we know them today, search warrants.

A search warrant is a document signed by a judge that details and grants permission for an authority figure, usually law enforcement personnel, to search a person’s belongings, including their home, car, or bag, in search of evidence to support their notion that a crime has been committed. The Fourth Amendment’s text places a number of required criteria that must be met in order for a warrant to be granted, which is meant to preserve privacy to the fullest possible extent.

In order to obtain a search warrant, the law enforcement agency must appear before a judge and request the warrant, including stating who or where they wish to search, when they wish to do so, and what they will be looking for during this search. A judge must weigh this request and determine whether the agency requesting the warrant has obtained “probable cause,” or a justifiable, reasonable suspicion that a crime has occurred, and then grant the warrant.

Warrants are not a free-for-all for law enforcement to look for whatever they want; those conducting the search are still heavily restricted in what they are and are not allowed to seize. For example, if the FBI wants to raid someone’s home on accusations that they are a major distributor of child pornography, and they obtain a warrant stating as such, they would not be allowed to seize a stash of illegal drugs they find in the home in order to then charge the individual with possession of a controlled substance. Evidence discovered illegally in this way is called “fruit of the poisonous tree” and is forbidden from being used against the defendant in court.

What Isn’t a “Search?”

There is another exception to the requirement of obtaining a search warrant, and that’s when a search doesn’t actually have to occur in order to obtain evidence. Anything in plain public view is not said to have a “reasonable expectation of privacy,” and therefore authorities don’t have to obtain a warrant in order to use it as evidence.

Let’s look at another example. Say a bank robber gets away from authorities and escapes capture but is then pulled over three days later in another state for having expired registration tags. Upon being pulled over, the officer notices a large knife sitting on the passenger side floor. After running the driver’s license information and the plate on the vehicle, he receives a notice that the car is flagged for being used in the robbery. The officer immediately moves into action and arrests the driver, then seizes the knife and submits it as evidence against the driver.

In this instance, the knife is considered admissible evidence because it was in plain sight where anyone in public could see it. Even though it was in the robber’s car, the fact that it was left in plain sight for everyone to see means that the robber had essentially forfeited his right to privacy since a search didn’t need to occur for the officer to find the suspicious item.

If you believe you may have been improperly searched, it’s crucial you speak with a Bergen County criminal defense attorney as soon as possible. Call the Law Offices of Joseph R. Donahue, LLC today at (201) 574-7919 to request a case evaluation appointment and start reviewing your options.
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