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What Constitutes an Illegal Search and Seizure

January 18, 2023
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What Constitutes an Illegal Search and Seizure

What Constitutes an Illegal Search and Seizure?

The police knock on your door at 5 am. You refuse to let them in. They kick down the door anyway. Is this lawful? No. Not unless the police had a valid warrant and advised you of the same. 

When the police cut corners and use intimidation tactics to get what they want without following protocol and the proper procedures, it results in violations of your constitutional rights. This means that anything taken from this search and seizure may have been obtained illegally. And that means you have a right to take action against the police. Being a police officer is a tough job, but it’s not impossible. Like any other job, when you cut corners, your work product suffers. But unlike any other job, when your work product suffers, people lose their constitutional rights.

What is an Illegal Search and Seizure?

An illegal search and seizure also known as an unreasonable search and seizure means the search and seizure was:

  1. Executed without a legal search warrant, which means either a judge did not sign off on the warrant or the description (place, person, or things to be searched/seized) was inaccurate; or 
  2. Executed without probable cause (if without a warrant), which means the police did not have proper cause to believe a person committed a crime evidence was located in a specific place other than mere suspicion; or
  3. Extended beyond the authorized scope of the search and seizure, which means the police searched a place they should not have or, among other possibilities, took something they should not have taken because it was not described in the warrant.

But the above is only a guideline. Even when one of the above situations exists, the search and seizure may still be considered lawful under certain circumstances.

How are Searches and Seizures Determined to be Reasonable in California? 

Searches and Seizures are determined to be reasonable based on the law, the facts, and the circumstances. In general, a search and seizure is reasonable if there is a warrant. But there are exceptions to the warrant requirement. The warrant, however, must be valid to be reasonable, and the exception must be within the limits imposed by law. 

In situations involving a warrant, you want to consider the following:

  • Magistrate. Was the warrant issued by a magistrate or judge? Also, was that magistrate neutral and detached – a warrant cannot be issued by someone engaged in law enforcement activities.
  • Probable Cause. Was there probable cause? Probable cause is viewed as facts sufficient to enable the officer to make a determination.
  • Particularity. Was there particularity, meaning was the name, thing, place, and time to be searched identified in sufficient detail? Particularity prevents the use of general searches and seizures that can very well and easily end up violating a person’s Fourth Amendment rights.
  • Execution. Was the warrant executed properly, meaning did the police stay within the limits of the warrant, or did they expand the search and seizure beyond what was allowed by the warrant?

In a situation involving a warrantless search and seizure, you want to consider the following:

  • Stop and frisk. Were you stopped and frisked first, which led to a search and seizure? If the police have reasonable suspicion to stop and frisk a person, and that led to probable cause (for example, they found illicit drugs or weapons in a pocket), then the search and seizure may be reasonable.
  • Incident to an Arrest. Were you searched incident to an arrest? If you were being arrested for a crime (assuming the police had probable cause to arrest you), the police can search the area within an arrestee’s immediate control for weapons, contraband, or the like. Also, the police can conduct protective sweeps of the entire premises (like your home) if they have reasonable belief another dangerous person may be hiding.
  • Vehicles. Did the search involve a vehicle? If so, the law applies differently. The police might be able to search the vehicle without a warrant, and in some situations this includes the entire vehicle or even closed containers if probable cause exists – but if it does not exist, then the search may be unreasonable. 
  • Consent. Did you consent to the search and seizure? If you consented – even if you were worried because you didn’t know what would happen if you refused – the search and seizure is reasonable.
  • Open Fields. Did it involve an open field? Were you searched and/or seized in an open lot, field, wooded area, open water – according to the U.S. Supreme Court decision in Hester v. United States, the Fourth Amendment does not protect “open fields” and so warrants and probable cause are not required. 
  • Plain View. Was the seized item in plain view? If so, it may not be protected by warrant or probable cause requirements, so long as the police had the right to be where they were when they saw the object.

There are other exceptions, too, like searches that take place in a government building, public schools, prison facilities, at the border, or on vessels (boats, ships, etc.). Searches and seizures are often considered reasonable in these situations with few exceptions.

What to Do if Your Fourth Amendment was Violated by the Police in California?

If you believe your Fourth Amendment rights were violated and, as such, are a victim of an unlawful search and seizure, there are two possible remedies – one relates to a criminal case and the other involves the civil court. 

Remedy 1: Exclusionary Rule

The exclusionary rule involves evidence unlawfully obtained, and usually this is because a search and seizure was unreasonable. In your criminal case, a lawyer can file a motion to exclude the evidence. If granted, it would prevent evidence obtained unlawfully from being introduced in court as evidence. You may have heard of this as the fruit of the poisonous tree, which is a doctrine stating that any evidence obtained from an illegal search is tainted by the illegality of the search resulting in its suppression unless it was inevitable that the same evidence would have been obtained through another (and legal) means. 

Remedy 2: Civil Rights Claim

You may also be able to file a civil rights claim against the offending officer or law enforcement department. To be successful, however, you must show:

  1. The search and seizure was unreasonable;
  2. The police (or other law enforcement agent) performed the search and seizure; and
  3. You suffered some injury (be it emotional or physical)  as a result. 

Keep in mind that police enjoy qualified immunity. This means they are protected against personal liability and cannot be sued. Qualified immunity, however, does not apply when no reasonable officer would believe that this officer’s conduct was legal. 

That’s a high bar, but at Burris Nisenbaum Curry & Lacy, our civil rights attorneys in California have the experience, insight, and resources to build a strong case. You should not have to suffer financial harm in addition to injuries you sustain from the unlawful search and seizure. And in the metro areas of Los Angeles and San Francisco, injuries from unlawful searches and seizures are not uncommon. 

The Fourth Amendment is there for a reason: your safety, security, and privacy. Likewise, we at Burris Nisenbaum Curry & Lacy are here for a reason: to uphold your rights and seek justice for our clients and our communities.

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