Illegal Search and Seizure

by Aaron Delgado
January 13th, 2016

U.S. citizens and criminal suspects are protected under the Fourth Amendment of the U.S. Constitution from unwarranted searches, of their property and their person, unlawful arrests, and unlawful seizures of their property. But while this law may seem straightforward, that is not always the case.

Search and Seizure Warrant

According to the Fourth Amendment, a warrant can be issued if the police have probable cause to conduct a search. This warrant must detail a specific location to be searched and the people or items to be seized, if found there. That means if an officer has a valid search warrant, valid arrest warrant, or a belief of probable cause that a crime has been committed, a legal search and seizure may occur. If the police obtain evidence outside of those three criteria, that evidence may be excluded from trial.

What is Probable Cause?

In order to conduct a search without a warrant, an officer must have probable cause, which follows the same standards that are used to issue a warrant. Probable cause can exist for a search, an arrest, and to seize property. Regardless of the reason for probable cause, it must be based on facts and circumstances; suspicions, feelings, hunches, and the like do not warrant probable cause.

Probable cause exists when the facts and circumstances known to the officer would lead a reasonable person to believe that:

  • For a Search - a crime was committed at the location to be searched, or evidence of a crime exists at the location to be searched.
  • For an Arrest - the suspect has committed, is committing, or is about to commit a crime.
  • For Seizure of Property - the object is stolen, illegal to possess, or constitutes evidence of a crime.

Legal Search and Seizure without a Warrant

As previously mentioned, the legality surrounding a search and seizure without a warrant or probable cause is not always immediately evident. Even without a warrant or probable cause, police and other law enforcement agencies can conduct a search under the following situations:

  • Consent - If police ask if they can enter your residence to search for something and you consent, they do not need a warrant.
  • Emergency - If there is an emergency in progress, such as pursuit of an armed suspect who disappeared into a neighborhood, the police may not need a warrant to search homes in that area because the residents are at risk of being harmed or killed by the suspect.
  • Following an Arrest - If a person has been arrested, the officers at the scene may search the arrested person and their immediate surroundings for anything that may be used as a weapon or is otherwise dangerous. This is for the officers’ protection and that of any passersby.
  • Plain View - If police are legally authorized to be somewhere, they do not need a warrant to seize property as evidence if it is in plain view.

Criminal Defense Trial Lawyers Can Help

If you or a loved one have been arrested and suspect that an illegal search and seizure occurred in connection with the crime(s) of which you are being accused, contact an experienced criminal defense trial lawyer immediately.

At Delgado & Romanik, we pride ourselves on our reputation as trial attorneys. We have the necessary knowledge and experience to provide a thorough, attentive, and aggressive defense of your rights and your freedom. Our team of experienced trial attorneys will know if an arrest was made or if evidence was acquired through an illegal search and seizure, and will take the necessary steps to have that evidence dismissed and your rights protected. Call 386-492-8694 to schedule a free consultation with a criminal defense attorney in Daytona Beach today.