What is "Unlawful Search and Seizure?"


The Fourth Amendment of the U.S. Constitution is designed to protect all citizens from “unlawful” search and seizure by authorities. The founding fathers believed that privacy was a right that needed protection, especially from a government that could turn tyrannical if given an unchecked amount of power. Today, that same protection has bound what law enforcement can and can’t do when looking for evidence to try and either arrest or convict someone suspected of committing a crime. Let’s look at what the laws say about search and seizure and determine what might make a search “unlawful.”

Unlawful Search & Seizure

The text of the Fourth Amendment 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.” What this means is that your right to privacy, both of yourself, the contents of your home, your bags, and even your car are all forbidden from being searched by authorities unless they obtain permission in some form.

This is important because any evidence that is obtained in an unlawful manner cannot be used against you in court. For example, if you are stopped by law enforcement and forcibly searched without cause and they find a small amount of narcotics on you, odds are you may be able to get your charges dropped because the officer never established legal grounds for conducting the search that led to their finding the evidence and placing you under arrest.

What Makes Search & Seizure Lawful

Permission can be obtained in a few different ways, but arguably the most well-known way is by authorities obtaining a search warrant. This is a document that’s signed off by a judge and granted when authorities can provide a reasonable belief that they will find evidence that proves a crime has been committed and therefore a search should be warranted.

Giving authorities your permission to conduct a search is also reasonable grounds to have any discovered evidence seized, provided the evidence points to the crime they suspect you of. This is the same principle that the “implied consent” doctrine is based on: by driving a car on the roads, you automatically give your consent to be searched if you are placed under arrest on suspicion of driving under the influence of drugs or alcohol.

Finally, there are other rare exceptions as well, including if officers believe that the time necessary to get a search warrant would lead to the destruction and loss of evidence. This is a pretty gray area in legal terms, but it could reasonably be used to justify a search without getting a warrant, most often to search a premises where officers believe evidence is being destroyed.

If you think your arrest and search may have been unlawful, discuss your case with a skilled attorney from the Law Office of Stephen R. Leffler, P.C. Call our Memphis criminal defense attorney today at (901) 509-9112 for a case evaluation.
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