Illegal Search and Seizure: What You Need to Know

Serving Families Throughout Austin

In the U.S. constitution, limits are placed on law enforcement via the 4th Amendment. It limits police’s ability to make unlawful arrests, search people, seize their property and even take contraband like illegal drugs or weapons. You could say that the 4th Amendment is the basis of every American’s right to privacy. The exact wording of the 4th Amendment asserts that it is the right of US citizen and their property (their “houses, papers, and effects”) to not be searched without a warrant unless their is probable cause and the warrant specifically details the items to be seized and the place to be searched (“particularly describing the place to be searched, and the persons or things to be seized”). Essentially, the 4th Amendment is all about keeping a US citizen’s inherent right to privacy intact. It would be a poor government indeed if any police officer could waltz into your home, search your bedroom, take what they wanted, and left without a warrant or probable cause.

Do They Have Probable Cause?

Note that the key term here is probable cause. As long as a police officer has probable cause he can get a search warrant from a judge to search you, your home, buildings on your property, your car, your boat, any of your documents (paper or digital), bank account records, phone records, and even your trash bin. In some cases, though, the particulars of a case (mostly time-sensitive circumstances) can justify a search without a warrant.

Do You Have a Legitimate Expectation of Privacy?

Another thing to keep in mind is that just because you are a US citizen doesn’t mean you are automatically protected under the 4th Amendment. There is another aspect to the 4th Amendment called “legitimate expectation of privacy”. If someone doesn’t have a legitimate expectation of privacy, then they are not protected under the 4th Amendment. For example, if someone is at the bank looking through their safety deposit box in a curtained room, they have a reasonable expectation of privacy. It’s “reasonable” because a judge and jury would also consider this expectation to be reasonable. On the other hand, if someone left drug paraphernalia on the front seat of their car, then they don’t have an expectation of privacy, because no reasonable person would expect that leaving those items in view of the public would ever be considered to be private. To clarify further, the U.S. Supreme court created a simple test to determine if a defendant had a legitimate expectation of privacy at the time of the search. Two questions are asked: First, did the person expect some degree of privacy? Second, is that person’s belief reasonable? That is, would the rest of society recognize it as subjectively reasonable? The judge and jury will use these questions in your trial to determine your expectation of privacy.

A Note on Security Guards

The 4th Amendment only applies to police officers and law enforcement who work under the state or federal government. They are public employees whose wages are paid by taxes. This means that security guards, who work privately under a company or business and are paid by that business owner, don’t have to abide by the 4th Amendment. In many places throughout the country, like malls, office buildings, or pharmacies, security guards will be more frequently present than police officers. If you get searched by a security guard and the guard finds illegal drugs or weapons on you, they can call the police and turn you over if they choose to. The evidence they found will even be admissible (admitted) in court since the search was conducted by a security guard and not a public police officer. At this time, private security personnel don’t have to operate under the 4th Amendment.

The Exclusionary Rule

If the court finds that a search warrant was unreasonable and illegal, then any evidence found by that search must be excluded from the case and cannot be used in the persecution of a defendant, state or federal. This is called the exclusionary rule. Once the exclusionary rule went into effect after a 1961 Supreme Court ruling, opponents were vocal. They claimed that a criminal would be let free just because the police officer made a mistake. Supporters of the exclusionary rule say that it’s necessary to keep law enforcement officers from performing illegal searches and seizures. Proponents argue that if the evidence police find from an illegal search and seizure is admissible in court, what’s to keep them from invading the privacy of more and more Americans?

Fruit From the Poisonous Tree

Similar to the exclusionary rule, the “fruit from the poisonous tree doctrine” is another check that keeps police from obtaining evidence through unlawful means. We already know that any evidence from an illegal search is inadmissible in court since it was obtained in an unlawful manner, but any further evidence (the “fruit”) that comes from the original “tree” of evidence is also considered illegal too. For example, if a police officer illegally searched someone’s boat and found a list (the tree) of coastal locations where illegal drugs had been hidden, then went and found those items (the fruit), then both the drugs and the list (the fruit and the tree) would also be inadmissible in court since they were found through an illegal search of the boat.

My Search Was Found to be Illegal, am I Home Free?

It’s important to know that even if the court found that you were subject to an illegal search and seizure, you aren’t out of the dog house yet. That evidence can still be used by the judge to decide on a sentence after a conviction, to be admitted in civil or deportation cases, or even be used by the prosecution to attack the credibility of a witness during the trial. In some cases, the prosecution will still be able to put together enough evidence to incriminate you in the crime and send you to jail.

If you or a loved one has been subjected to an illegal search and seizure, then it is imperative to contact a knowledgeable criminal defense attorney as soon as possible. Contact Austin criminal defense attorneys at Carroll Troberman, PLLC today for a confidential consultation.