The Constitution says in the Fourth Amendment that citizens should be free from unreasonable searches and seizures by the Government. That includes the police. It does not, however, cover searches by private individuals. Therefore, to have a defense based on an illegal search or seizure, a defendant needs what lawyers call “state action.”
An individual who wants to object to a search and seizure must also have something called “standing.” Standing is the legal concept which says that a person can object to a search of my person, my home, my car or anywhere I have a legitimate expectation of privacy. However, a person cannot object to searches of other people, their homes, or anywhere they do not have an expectation of privacy. For example, the Supreme Court has held in that the defendant had no reasonable expectation of privacy in a trash can placed on the street for collection. California v. Greenwood, 486 U.S. 35 (1988).
In order to discourage the police from engaging in illegal searches, courts have ruled that evidence obtained through an illegal search or seizure is subject to suppression. This is called the Exclusionary Rule. In other words, the prosecution can not admit into evidence drugs, guns or other illegal items that the police obtained through illegal searches and seizures. Without those items the prosecution almost always has not way to prove their case and must dismiss the charges. Search and Seizure law is vast and complex. What may be considered a reasonable search in one place, like an airport, would be considered unreasonable somewhere else, like a public park. This website can only scratch the surface of this area of law. An in-depth interview and investigation of the facts is absolutely necessary before an attorney can determine if grounds for a motion to suppress evidence exists.
The law gives the most privacy protection to people’s homes. Police can only enter a person’s home if they have consent, are in hot pursuit of a felon, or have a search warrant. That is why the police often obtain a search warrant if they want to search a residence. In order to obtain a search warrant, the police must take a sworn affidavit to a judge and ask him to find that they have probable cause to search a particular location for particular evidence. The affidavit frequently contains information from an unnamed informant.
It is possible in some cases to attack the affidavit once a criminal charge has been filed. Sometimes the information in the affidavit does not establish probable cause. A judge cannot accept the conclusions of the affiant without facts. If the identity of a source is unknown, or if no information is contained in the affidavit about how the source knows the information, the validity of the search warrant may be attacked.
Another method is to attack the truth of the affidavit. The Supreme Court has held that in certain circumstances, an accused must be permitted to attack the truthfulness of the affidavit used by the police to obtain the search warrant. The defendant must be able to make a substantial showing in the form of sworn affidavits that a false statement was included, either knowingly and intentionally, or with a reckless disregard for the truth. In addition, the lie must be important to the finding of probable cause. If a defendant can meet that burden, the court must hold a Franks hearing. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed2d 667 (1978). The court may still deny the attack on the search warrant after a Frank’s hearing, so the defense must then prove that the search warrant affidavit contained lies that undermine the basis for probable cause. However, often when a Frank’s hearing is order the prosecution will dismiss the case rather than be forced to put an informant on the witness stand.
Sometimes it is possible to attack a search and seizure based on a warrant is to attack the scope of the search. In other words, a warrant may authorize the search of a place, but that does not necessarily give the police the right to search all of the people in that place. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed. 2d. 238 (1979). Another example of a search beyond the scope of a warrant is where the police have a warrant for an upstairs apartment and search the entire building. To determine if you have grounds to attack a search warrant, you must consult with a knowledgeable criminal defense attorney.
If a person’s car is searched and drugs are recovered, the first line of defense may be to attach the stop of the car. Police cannot stop cars for no reason. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). However, police may stop a car for a minor traffic violation as a pretext to investigate the car as long as a violation, no matter how minor, really existed. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed. 2d 89 (1996). It is important to attack the stop of a vehicle whenever possible, because police often claim that once they approached the car they saw drugs in plain view, giving them probable cause to search the car and arrest the occupants. Another method police use if they suspect that drugs are in the car to ask if there are drugs in the vehicle. If the driver says no, the police then ask for permission to search the car, claiming that if the driver had nothing to hide he would not object to a search. No one should ever willingly submit to this tactic, no matter what is in the car. If you would you not let a total stranger who was not a police officer paw through your car, then do not agree to allow the police officer to do it. People who refuse to give up their rights are sometimes threatened with a “dog sniff” where a police dog is summoned to sniff their car to see if drugs are inside. The dogs may or may not exist, but if you consent to a search you have surrendered your rights and made it more difficult to attack the search in court.
Search of Person
Police search people for a variety of reasons, and sometimes for no reason at all. The police can search a person if they have probable cause to arrest him. This is known as a custodial search. The police can sometimes search a person as part of a wellness check, for example if they find someone who is unconscious. However, the police cannot search a person without a legal reason.
The scope of the search also depends on the information available to the police. If the police have reasonable suspicion to believe that a person is engaged in criminal activity and may be armed and dangerous, but do not have probable cause to arrest, then they can pat down the suspect. This type of searched is extremely overused by law enforcement. Chicago police routinely pat down citizens in almost every encounter, claiming they “feared for their safety,” even during routine traffic stops and encounters with citizens on the street. If drugs are found, they invoke the “plain feel” doctrine, which says that non-threatening contraband detected by touch during a pat-down search may be seized. However, this type of search can be challenged as long as the drugs are not in plain view.
The plain view doctrine allows police to seize any illegal item, including drugs, which they find when acting within the scope of their legal authority. In other words, even if the police approach a person for no reason, if he drops drugs to the ground they can seize them and arrest the person. This fact pattern is so common in Chicago that attorneys give it the short-hand label of a “drop case.” Remember, if you encounter the police when you have something in your pocket that you should not have, leave it there. Otherwise you give up any challenge based on an illegal search or seizure.