Most people are familiar with the basics of search and seizure, or have at least seen police perform a search and seizure on a legal drama show. And while some search and seizures certainly occur within legal parameters and are for the betterment of society, other times, police officers abuse their privileges and unlawfully search suspects’ clothes, bodies, homes, vehicles, or bags, and seize – or take – items that they find to be incriminating. In fact, an article in the Washington Post highlights that aggressive policing has even resulted in police taking hundreds of millions of dollars in cash from motorists who are never even charged with a crime.
While the average individual knows what a police search and seizure is, very few understand the actual law and their rights under it. As such, police officers who illegally seize incriminating evidence – or anything else for that matter – often do so without repercussions, as the victim has no idea whether or not the seizure was legal. Further, when an illegal search occurs and incriminating evidence is found, and that evidence is then used against the defendant, the defendant’s Constitutional rights have been breached. For this defendant, an illegal search and seizure may mean unjust jail time, fines, and more.
Search and seizure laws are dynamic and ever changing. To be sure, while the language within the Constitution may remain constant, interpretation of that language and its application in today’s world is not. In fact, many states interpret search and seizures laws differently from one another or from the federal government, as do many law enforcement officers, lawmakers, and judges.
It is important for persons who are charged with a crime to understand that in many cases, evidence (against the defendant) discovered via an illegal search and seizure may be thrown out by the court. Further, any additional evidence that was derived from the original search and seizure may be considered invalid, and dismissed by the court as well.
Search and seizure laws are an integral part of the American justice system. This guide will review the following topics in detail. If you have been illegal searched or had personal effects illegally seized, contact The Law Office of H. Chase Harbin for a free case consultation today.
- What Is a Search and Seizure? In this section of the guide, we will review what constitutes a search and seizure, the different types of search and seizure, and when you have the right to say no to a search and seizure.
- Fourth Amendment and Your Right to Protection. The Fourth Amendment of the U.S. Constitution is the basis for individuals’ search and seizure rights in America. The following will review the Fourth Amendment and address what its language means and situations in which the Fourth Amendment does not protect you.
- Police Officers’ Rights and Responsibilities in Regards to Search and Seizure. Just as you have rights under the Fourth Amendment, so too do police officers. It is important that you understand police officers’ rights and responsibilities, as well as what the consequences may be if you do not comply with an officer who is exercising those rights.
- Why You Need an Attorney if You Have Been Illegally Searched. This is one of the most important parts of this guide, as it provides insight as to your legal rights following an illegal search and seizure, as well as what may happen if you do not seek legal counsel.
- Search and Seizure Frequently Asked Questions. This FAQ list will go over any questions that you may have about search and seizure laws nationally and in South Carolina.
Private Party Searches
Most people assume that search and seizure laws apply to all types of law enforcement officers and security guards. However, this is not true; search and seizure laws outlined by the Fourth Amendment only apply when the search is conducted by an employee of the government (i.e a police officer). Many private establishments, such as shopping malls, hire private security guards for their security. If a private security guard performs an illegal search and seizure, protections provided under the Fourth Amendment will not apply.
Search and Seizure Laws: Homes vs. Cars
The majority of this guide will discuss search and seizure laws regarding a person’s home or property. However, one of the most common questions that those who have been charged with a crime have is whether or not there is any legal difference between the search of a physical dwelling and the search of a car.
In short, an officer must have probable cause or a warrant in order to search a home or a vehicle – this will be discussed in more detail below. That being said, an officer can only search your car (without a warrant) if they have probable cause to do so, or if you give them permission.
A minor traffic infraction – like speeding – is not probable cause for a vehicle search. Rather, the police officer must have more reason than not to believe that illegal activity has occurred. For example, if while the police officer is writing you a ticket for speeding they notice that there is an open bottle of vodka in the front seat and you smell like alcohol, this may be cause enough to search your vehicle. Or, if drug sniffing dogs are nearby and indicate that your vehicle has illegal drugs within it, this is cause enough to search your vehicle. However, police do not have the right to detain you for an unreasonable amount of time in order to bring drug sniffing dogs on scene; if the dogs are not already within the area, an officer cannot call for them while detaining you. Just as with your home, you do not have to give an officer permission to search your car if you are asked. In fact, it is always within your best interest to say no when asked to consent to a search, even if you have nothing to hide.
Keep in mind that as a passenger of a car that is stopped, you too have rights. The police do not have the right to detain passengers or ask them to consent to a search, unless reasonable suspicion is founded against the passengers too. Passengers, just like drivers, have the right to say no.
Police Officers’ Right to Stop & Question
It is also important to make a distinction between an officer’s right to search a person or person’s property and an officer’s right to stop an individual and question them. The right to stop a person is based on reasonable suspicion, which is lesser standard of proof than probable cause. If an officer has reasonable suspicion, they have the right to stop an individual for a reasonable amount of time. While reasonable detention of a person does also extend, for obvious reasons, to the reasonable detention of that person’s immediate property (like a backpack that the detained person is carrying), it is not enough to give police the right to search the property.
Illegal Tactics Police Officers Use to Perform Searches
Police officers know that they have a certain level of power over non-law enforcement citizens, and they will often leverage this power in order to perform an illegal search and seizure. Some examples of tactics that police officers may use to conduct illegal searches and seizures include:
- Threatening that if you do not consent to a search, something worse will happen to you;
- Insisting that they can “help” you if you consent to the search;
- Displaying a piece of paper (without letting you read it) and claiming that it is a search warrant;
- Telling you that if you have nothing to hide, you should consent to a search;
- Threatening to detain you until a warrant can be obtained;
- Tricking you into giving consent; and
- Getting consent from a person who does not own your property and whom they have no right to ask, such as a passenger.
It is completely understandable why these tactics work and why officers often get away with searches performed based on the reasons above; police officers and the possible repercussions of disobeying them can be extremely intimidating, and downright scary.
Know Your Rights When it Comes to Search and Seizure
This guide will explore your rights regarding search and seizure in depth. Knowing these rights can not only help you in the event that a police officer asks to search your home or vehicle, but also after an illegal or questionable search and seizure has occurred. If you have any questions throughout your reading, contact the Law Office of H. Chase Harbin for a free consultation.