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Illegal Search and Seizure: The Basics

Illegal Search and Seizure: The Basics

What is an illegal search and seizure, and why does it matter in a criminal case?

When attorneys talk about illegal searches and seizures, what they mean is an “unreasonable search and seizure” that is prohibited by the Fourth Amendment.

Below, we will discuss illegal searches and seizures and their effect on criminal cases, including:

  • What illegal search and seizure means,
  • The relationship between the US and the SC Constitutions,
  • What probable cause means in different situations, and
  • How an illegal search or seizure can result in the exclusion of evidence in a criminal case.

What is an Illegal Search and Seizure?

An illegal search or seizure is a search or seizure that does not comply with the requirements of the Fourth Amendment to the US Constitution (or Article I Section 10 of the SC Constitution).

What are those requirements?

The Fourth Amendment to the Constitution

The Fourth Amendment to the US Constitution says that:

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.

What does that mean?

It means that searches and seizures by government agents and law enforcement must be reasonable. It means that warrants can only be issued if:

  • The warrant is based on probable cause,
  • The probable cause is supported by oath or affirmation by law enforcement, and
  • The warrant specifically describes the place to be searched and the persons or things to be seized.

What makes a search or seizure reasonable?

In most cases, a search or seizure is reasonable if it is based on probable cause. In most cases, if the search or seizure is not based on probable cause, the search or seizure is unreasonable and therefore illegal.

So, what happens when a court finds that a search or seizure was unreasonable and in violation of the Fourth Amendment because there was no probable cause?

The Exclusionary Rule

In Mapp v. Ohio, the US Supreme Court held that the exclusionary rule applies to evidence that was obtained from an illegal search or seizure in violation of the Fourth Amendment. If evidence was found during an illegal search or seizure, that evidence is not admissible in court and cannot be used against the person whose rights were violated. That means the evidence is thrown out.

The US Supreme Court has also held that the exclusionary rule applies to violations of other constitutional amendments. For example, incriminating statements obtained in violation of the Fifth or Sixth Amendments are not admissible against the person who made the statements (in most cases – the statement can be used for impeachment if the defendant/accused person testifies).

What if the illegally obtained evidence (or statements) leads to the discovery of other evidence? In this case, the other evidence or “derivative evidence” is also excluded or thrown out as the “fruit of the poisonous tree,” although there are exceptions like the “independent source doctrine.”

Article I, Section 10: The SC Constitution

The US Constitution is not the only source of constitutional rights – Article I, Section 10 of the SC Constitution’s language is nearly identical to that of the Fourth Amendment, with additional language that adds protection against “unreasonable invasions of privacy:”

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy 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, the person or thing to be seized, and the information to be obtained.

The SC Supreme Court has held in several cases that the prohibition against “unreasonable invasions of privacy” gives SC citizens additional protections above the “ground floor” protections provided by the Fourth Amendment.

To take advantage of this protection, an attorney may file a motion to exclude evidence obtained during an illegal search or seizure in addition to citing the Fourth Amendment.

What is “Probable Cause?”

What is probable cause?

Probable cause can be hard to nail down at times – one way to say it is that it is “a good reason” for a search, seizure, or arrest. It’s somewhere between a “reasonable suspicion” and the civil standard of “preponderance of the evidence.”

Probable cause means there is a reasonable basis for the arrest, search, or seizure, and that there is a fair probability that the person committed the crime or that the evidence will be found at the location law enforcement wants to search.

Probable Cause to Arrest Someone: Arrest Warrants

Unless there is an exception that allows a warrantless arrest (and there are many), police must first go to a judge and get an arrest warrant signed based on probable cause.

The officer will usually provide the facts that support probable cause in a “warrant affidavit”that is sworn and notarized, but police are also allowed to verbally provide information to the magistrate, supplementing the warrant affidavit with oral testimony.

The information provided to support probable cause must be based on facts from the officer’s observations, witness statements, or other evidence, and it cannot be based on a mere hunch or the officer’s suspicions.

If the judge finds that the officer’s facts support probable cause that a crime has been committed, the judge will sign and issue the arrest warrant. If the judge does not find that the facts rise to the level of probable cause, the judge should deny the officer’s request for a warrant.

Probable Cause to Search or Seize Property

The process for obtaining a search warrant is similar. If police believe that there is probable cause to search your home, business, person, or other location for evidence of a crime, they must go to a judge and present facts sufficient to support probable cause that a crime has been committed and that evidence will be found at the location.

Police must:

  • Provide facts that support probable cause that a crime has been committed,
  • Provide facts that support probable cause to believe that evidence of that crime will be found at the location (in a search warrant affidavit),
  • Provide a detailed description of the location to be searched (exact address and a physical description, for example), and
  • Provide a detailed description of the evidence that police expect to find at the location.

If property found pursuant to the search warrant is evidence of a crime, police are authorized to seize the property.

Exceptions to the Fourth Amendment Prohibition Against Unreasonable Search and Seizure

The Fourth Amendment is one area of the law where “the exceptions have swallowed the rule.” I won’t discuss all the exceptions to the Fourth Amendment here, but a few examples include:

  • The “automobile exception:” Police do not have to get a warrant before searching a vehicle on the roadside, but they do need probable cause (or reasonable suspicion in some situations) – the courts can later review the case to decide whether the officer had probable cause to search.
  • The “plain view exception:” If police are in a place where they have a legal right to be (searching your house for evidence of murder pursuant to a search warrant, for example), and they come across evidence that is in plain view but that was not a part of the search warrant (drugs lying on the kitchen table, for example), they are allowed to seize the contraband.
  • The “plain feel exception:” If police are conducting a “Terry frisk,” or pat-down on a person, that is justified by reasonable suspicion to search for a weapon, and they feel something that is obviously contraband (a baggie of cocaine, or example), police can then reach into your pocket and retrieve the contraband.
  • The “border search exception:” At the nation’s borders (including airports), the courts have required a lower standard than probable cause for searches, justified by security concerns.

Questions About Illegal Search and Seizure?

If police seized evidence from you, your home, or your vehicle in violation of the US or SC Constitutions, that evidence can be excluded from your trial – which could result in an acquittal or even a dismissal before trial.

Email Attorney Susan E. Williams for a free consultation using this contact form.

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