Best Houston Attorney » Search and Seizure: Exactly What Police May and May NOT Do.

18 Aug

Houston Criminal Defense Attorney
Although people within the U.S. are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property and assets in order to look for and seize unlawful items, stolen goods or evidence of a criminal offense. What rules must police officers follow when engaging in searches and seizures? What can they do in upholding the laws, and what can’t they do?

What the police May Do:

  • Under the Fourth Amendment to the United States Constitution, law enforcement may engage in “reasonable” searches and seizures.
    • To demonstrate that a search is “reasonable,” police officers need to generally show that it is more likely than not that a criminal offense has transpired, and that if a search is conducted it is probable that they will find either stolen goods or proof of the crime. This is named probable cause.
    • In several situations, the authorities need to first make this showing to a judge who issues a search warrant. Usually in most special circumstances, however, the authorities may be able to conduct a search without the need of a warrant. In fact, the majority of searches are “warrantless.”
  • Police may search and seize items or evidence when there’s no “legitimate expectation of privacy.” In some other words, should you didn’t have a privacy interest in the items or evidence, the authorities can take them and, in effect, no “search” has happened.

Note: In deciding whether there was a “legitimate expectation of privacy,” a court will take into consideration two important things:

  • Did you have an expectation of some degree of privacy?
  • Was that expectation reasonable in our society’s view?

Example: You have a semi-automatic rifle that you stole from a pawn shop. You leave the rifle laying on the hood of your automobile when you get home. You do not have a “legitimate expectation of privacy” with regard to items you leave on the hood of your automobile, and the police may take the gun. No search has transpired.

  • Police may use first-hand info, or tips from an informant to justify the need to search your property. If an informant’s info is utilized, the authorities need to establish that the information is reliable under the circumstances.
  • Once a warrant is obtained, law enforcement may enter onto the specified area of the property and search for the items listed on the warrant.
  • Police may perhaps extend the search beyond the specified area of the property or include various other items in the search beyond those specified or listed in the warrant if it is required to:
    • Ensure their safety or the safety of others;
    • Prevent the destruction of evidence;
    • Discover more about possible evidence or stolen items that are in plain view; or
    • Hunt for evidence or stolen items which, based upon their initial search of the specified area, they believe may be in a different location on the property.

Example: Police officers have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your property to go down to the basement, they see a cache of weapons sitting on your kitchen table. Some might take the guns to guarantee their safety while searching your basement.

  • Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
  • Police may search your person and the immediate surroundings without having a warrant when they are placing you under arrest.
  • If a person is arrested in a residence, law enforcement officials may make a “protective sweep” of the home in order to make a “cursory visual inspection” of places where an accomplice may be hiding. In order to accomplish this, the authorities must have a reasonable belief that an accomplice may be around.

Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet due to the fact that an accomplice couldn’t hide there.

  • When you are being taken to jail, law enforcement may perform an “inventory search” of items you have with you without any a warrant. This search may include your automobile if it is being held by police officers in order to make a list of all items inside.
  • Police may search without having a warrant should they reasonably fear for their safety or for the public’s safety.

Example: If law enforcement drive past your house on a regular patrol of the neighborhood and see you, inside your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant.

  • If it’s necessary to prevent the imminent destruction of evidence, the police may search without the need of a warrant.

Example: If the authorities see you trying to burn a stack of money that you stole from a bank, they can perform a search without having a warrant to prevent you from further destroying the cash.

  • Perform a search, without any a warrant, when they are in “hot pursuit” of a suspect who enters a private dwelling or area following fleeing the scene of a criminal offense.

Example: If the authorities are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they can follow you into the apartment and search the area without the need of a warrant.

  • Police may perform a pat-down of your outer clothing, in what is designated a “stop and frisk” situation, as long as they reasonably believe that you may be concealing a firearm and they fear for their safety.

What the authorities May NOT Do:

  • The law enforcement may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
  • If evidence was attained through an unreasonable or illegal search, police officers may not use it against you in a trial. This is called the “exclusionary rule.”
  • The law enforcement may not use evidence resulting from an unlawful search to obtain other evidence.
  • The law enforcement may not submit an affidavit in support of obtaining a search warrant if they didn’t have a reasonable belief in the truth of the statements within the affidavit.
  • Unless there is a reasonable suspicion that it contains evidence, unlawful items, or stolen goods, law enforcement may not search your vehicle. If your vehicle has been seized by law enforcement, however, they can search it.
  • Unless they have a reasonable suspicion that you are involved in a criminal activity, police officers may not “stop and frisk” you. If they have a reasonable suspicion, they can pat down your outer clothing if they have concerns that you could be concealing a firearm.

Houston Search & Seizure Defense: Hire the Leading Houston Criminal Defense Attorney  »  Charles Johnson Law Firm

Courts quite often have to determine case-by-case whether the circumstances in which law enforcement searched without a warrant had been legal. As a result, if a search has already occurred and you aren’t sure of its legality, get in touch with the Top Houston Drug Crimes Attorney as soon as possible. And if the search has not yet been conducted, make sure that you understand your rights in advance.

Houston Criminal Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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