Illegal or Unlawful Searches

For police purposes, a “search” is an investigation of a person’s property, body, personal belongings, or other area in which a person could reasonably expect to keep private from law enforcement.

A search may be considered unlawful or illegal if it is conducted in a manner that would violate a person’s reasonable expectation of privacy, such as if the search is conducted without a warrant or when it does not meet the criteria for one of the warrantless exceptions.

As a general rule, police officers must have probable cause before they conduct a search and to obtain a search warrant. Along with probable cause, the other important requirements of a search warrant include:

• That it is issued by a neutral and detached magistrate;
• It identifies the areas and/or items that need to be searched and potentially seized; and
• That it was filed in good-faith by the officer requesting the warrant.

In addition, there are also several exceptions for when law enforcement may not need to obtain a search warrant in order to conduct a search. These exceptions will be discussed in further detail below.

What is a Reasonable Expectation of Privacy?

Searches and seizures are mainly governed by the Fourth Amendment to the U.S. Constitution. The Fourth Amendment essentially guarantees all U.S. citizens protection from illegal searches and/or seizures — when conducted by law enforcement — of their property, body, personal belongings, and other areas in which they have a “reasonable expectation of privacy.”

Places in which a person generally has a reasonable expectation of privacy include:

• A person’s residence (e.g., apartments, houses, motor homes, house boats, etc.);
• Locations where an individual has permission to stay as an overnight guest (e.g., property other than their primary residence, hotels, or at friend’s house);
• Certain areas of a motor vehicle (like a locked trunk or closed container);
• Specific public places (e.g., a public restroom stall); and
• Property and/or personal belongings that one is in possession of, but does not actually own.

Thus, according to the rights afforded by the Fourth Amendment, the places listed above should receive the utmost protection when law enforcement carries out a search. This usually means that law enforcement must obtain a warrant if they plan to search an area in which a person would have a reasonable expectation of privacy.

For instance, a person would reasonably expect to have privacy in their own home. Therefore, if the government or law enforcement barged in without a warrant or good-faith reason, then it would be a legitimate invasion of their privacy and could result in the suppression of any evidence obtained.

What Kinds of Searches Can Be Conducted?

There are a number of different searches that can be conducted legally, including:

• Searches that take place after receiving a proper warrant;
• Searches where a warrant may be improper, but the good-faith exception applies; and
• When the search falls under one of the warrantless exception scenarios (e.g., consent was given, done in “hot pursuit”, etc.).

There are also various places in which a search can take place, such as:

• In a person’s home or on their property;
• The interior of a motor vehicle;
• An external frisk of a suspect’s person or internal (like a cavity or strip search); and
• Searches that involve electronic surveillance (such as wiretapping or monitoring a person’s online activity.

What Kinds of Searches are Prohibited?

A search may be prohibited when it is done in an unlawful manner. Some examples of unlawful searches include:

• Conducting a search without a warrant, especially in those instances where a warrant is necessary;
• A search in which a warrant was obtained, but the warrant was not executed properly and the good-faith exception does not apply;
• If the search is done in such a way that it violates an individual’s reasonable expectation of privacy; and
• When the search does not fall under one of the exceptions to the warrant requirement (see section directly below).

One common scenario that frequently comes up when discussing unlawful searches are illegal searches in a vehicle. In order to perform a legal search of a person’s motor vehicle, the police must obtain a valid warrant. A warrant will only be granted if the police have reasonable suspicion that the vehicle contains evidence of a crime.

Although there are some exceptions to this general rule that will allow the police to search the interior and items that are in plain view inside the vehicle, they will not be permitted to search locked containers or closed personal belongings without a warrant. They also will not be able to search locked containers that clearly do not hold the contraband that they are seeking.

For instance, if the police are conducting a warrantless search of a vehicle for a stolen weapon and they open a sealed jewelry box on the passenger seat that could only hold one ring, then this search would most likely be deemed unlawful.

Are There Exceptions to the Warrant Requirement?

There are several situations in which a search warrant will not be required. These are known as the “warrantless exceptions.” Below is a list of scenarios for when a search warrant may not be required due to an exception:

• When performing a search of a person who has been lawfully arrested;
• If the person being searched or the owner of the property being searched voluntarily consents to the search;
• During a Terry stop or “stop and frisk” when a person is briefly detained for investigatory purposes;
• When the search is linked to a suspect that the police are in “hot pursuit” of;
• If potentially incriminating evidence is about to be destroyed or lost;
• After a valid stop, the police may conduct a warrantless search of the inside of an individual’s motor vehicle; and
• The search takes place in an area that is in plain view of an officer.

It is important to note, however, that the above list is subject to various limitations and requirements of what an officer may and may not be able to search without a warrant.

What if a Search is Conducted Illegally?

As previously mentioned, a search that is conducted without a proper warrant and does not fall under any of the warrantless exceptions will be considered an illegal search. Evidence or information that is obtained during an illegal search is referred to as “fruit of the poisonous tree”, or “FOTPT” for short.

FOTPT is an important criminal law doctrine that renders illegally acquired evidence inadmissible in court. The basic idea behind this doctrine is that if law enforcement conducts a search in a manner that would violate a defendant’s constitutional rights, then any information that illegal search produces should be considered “tainted” due to their unlawful conduct.

For example, suppose the police arrest a defendant without reading them their Miranda rights and bring them to a police station. At the station, the police then use coercive tactics or force the defendant to answer questions about jewelry they supposedly stole.

If the defendant tells the police where the stolen jewelry is located and the police only find it based on their answer, then both the defendant’s statements and the stolen jewelry will most likely be inadmissible.

The reason the defendant’s statements and the stolen jewelry will be inadmissible is because the police went about searching for it in an illegal manner. First, they violated the defendant’s fifth amendment rights by not Mirandizing them, and then they violated search and seizure protocols based on the defendant’s illegal and inadmissible statements.

This is why the FOTPT doctrine can be an important and useful tool for a criminal defendant. It has the power to potentially reduce the legal consequences of a crime and in some matters, may possibly serve to dismiss a case altogether.

However, there are three exceptions to when the FOTPT doctrine will not apply if:

• Discovery of the evidence was inevitable;
• A separate source, independent of the initial illegal one, also found the evidence; and
• If the connection between the illegal conduct and discovery of the evidence is too thin.

Additionally, FOTPT will also not apply if evidence is illegally acquired, but admissible based on the good-faith exception to invalid search warrants.

Do I Need a Lawyer if I Believe an Unlawful Search Has Occurred?

If you believe that you or your property have been subjected to an unlawful search, then you should strongly consider contacting a local criminal attorney as soon as possible. In reviewing your case, your attorney will be able to determine whether law enforcement followed the proper search and seizure protocols, and if any of your constitutional rights were violated as a result of noncompliance.

In the event that law enforcement conducted an unlawful search and/or your legal rights were violated during a search, your attorney can assist with getting any illegally obtained evidence suppressed in your case.

Additionally, your attorney can discuss the potential outcomes of your case based on the laws of your state, help prepare and file relevant legal documents, and can check to see if there are any defenses available to raise against your charges. Your attorney can also represent you in court on the matter if necessary.