UNLAWFUL SEARCH AND SEIZURE IN A NUTSHELL
Search and seizure is a process used by law enforcement to search a person or the confines of their property (automobile, residence, business, cell phone, etc.) in connection with a crime, and then confiscate all evidence in support of that particular crime. The general rule of thumb in the United
THE FOURTH AMENDMENT PROVISION:Specifically, the Fourth Amendment of the Constitution provides that is it "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
SEARCH AND SEIZURE DEFINED:Searches occur when an individual's reasonable expectation of privacy is breached. Reasonable expectation of privacy can be subjective or objective. A subjective expectation of privacy is based in the individual's opinion about their privacy. An objective expectation of privacy is based in what is generally recognized by society as being private. The Fourth Amendment only applies where there an individual has a subjective expectation of privacy but there must also be an objective expectation as not all individuals have reasonable, subjective opinions about what should be considered as private. Some examples of where the Fourth Amendment applies are residences, hotel rooms, private sector businesses buildings, public restrooms, phone booths, etc. However, it is important to note that there is no expectation of privacy where things are held out for public consumption or view, such as garbage left on the street, or marijuana growing in the front window of a home that can be easily viewed from the sidewalk or that is not only viewed by enhanced surveying equipment or in places considered "open fields" such as barns and other outbuildings. Seizures occur when there is a reasonable interference with an individual's rightful ownership interests in the property occurs. Seizures can include a wide array of property, such as cell phones, bodily fluid, clothing, wallets, weapons, or other possessions not abandoned by the owner.
THE MYTHS ABOUT THE FOURTH AMENDMENT:One myth about the Fourth Amendment is that law enforcement can never conduct a search without a warrant and if they do then the evidence obtained is inadmissible. Another myth about the Fourth Amendment is that if incriminating evidence is obtained in violation of the Fourth Amendment, then the case against the defendant must be dismissed. Neither of these myths are valid.
THE TRUTH ABOUT THE FOURTH AMENDMENT:The truth about the Fourth Amendment is that searches and seizures may be conducted without a law enforcement officer first obtaining a warrant providing a valid exception to the warrant requirement applies. Furthermore, even if an officer violates the Fourth Amendment, the evidence collected that is subject to the violation must be deemed "poisonous" by a Court of competent jurisdiction upon the motion of defendant or the defendant's attorney. If the Court deems the evidence poisoned, then all evidence that arose as a result of that illegal search and seizure shall also be suppressed. This is the "fruit of the poisonous tree" theory. However, just because evidence is suppressed does not mean the case shall be dismissed. If the prosecutor can prove their case against a defendant without the evidence that was suppressed, then the case will likely proceed against the defendant under the alternate evidence. If you feel your Fourth Amendment Rights were violated then seek legal counsel immediately to ensure your rights to challenge the evidence against you is preserved.