Since police officers are intimidating figures, many people comply with whatever officers demand.
These people allow police to search their person or their homes without objection, even if the police don’t have a valid search warrant.
However, you should never give police explicit permission to search you or your property.
You have a constitutionally protected right against unreasonable searches and seizures.
It’s critical for any criminal suspect to understand what can make a search warrant invalid and to fight an illegal search or seizure.
So how do you fight a search warrant? I help clients fight search warrants to protect their property and privacy. Keep reading, and I’ll fill you in on the basics of search and seizure under the Fourth Amendment.
As a criminal defense attorney, I hear these questions from my clients:
- The police told me they have a search warrant; what is it and what did they need to do to get it?
- Are search warrants required for every search?
- What can make a search warrant invalid?
- What powers do the police have when they get a search warrant?
- During a traffic stop, can the police search my car and frisk me?
- My car was towed and impounded; can the police search it?
- How can an attorney help?
Here, I’ll share the answers to those questions. If you’d like more legal information about your case, give me a call for a free consultation.
The Police Told Me They Have a Search Warrant; What Is It and What Did They Need to Do to Get It?
A search warrant is a document, issued by a judge, that gives police permission to search a place or person and seize evidence of a crime. To get a search warrant, the police have to present the judge with an affidavit.
The affidavit states that:
- There is probable cause (it is likely) that a crime occurred, and
- Evidence of the crime is likely to be found at/on the location or person named.
The search warrant must list specific things the police expect to find. It can’t give police general permission to search your house looking for evidence of any crime. Being too broad is an example of what can make a search warrant invalid.
A warrant based on false information may be used if the police reasonably believed that the search warrant was valid. However, the police cannot make a fake arrest warrant.
Are Search Warrants Required for Every Search; What Can Make a Search Warrant Invalid?
Search warrants are not required for every search. Many exceptions allow police to search without a warrant.
Exigency
Exigency means that there is an emergency that justifies the search. If the police think someone is in danger, they can search without a warrant. If the police are in hot pursuit of a suspect, they can follow the suspect into a private residence.
Destruction of Evidence
If the police think you are destroying evidence, they can search without a warrant. For instance, imagine police knock on your door as part of a drug investigation and hear a toilet repeatedly flushing. The police might believe that you are flushing drugs down the toilet and barge in without a search warrant.
Consent
If you consent to the search, then it is legal. An experienced criminal defense attorney might be able to show that your consent resulted from police coercion.
Search Incident to Arrest
When police have cause to arrest you, they can search you and your immediate surroundings. The police have justification for this search to look for weapons that might endanger them. This does not mean police have permission to search your entire home—just the area where you might reach for weapons.
Plain View
If police are in your home for a valid reason and they see evidence of a crime or contraband (like drugs) in plain view, police can seize the evidence. Police can’t open containers or move objects to claim plain view.
Automobile
When police pull you over for a traffic violation, they can take advantage of some exceptions to Fourth Amendment search warrant requirements. The law gives you a lessened right to privacy in your car compared to your home. Because vehicles can quickly move evidence, police may be able to search your car for evidence if they have reasonable suspicion of a crime.
What Powers Do Police Have When They Get a Search Warrant?
Police can enter your home or car with a search warrant, even if you object. Police can look for the things listed on the warrant in the places listed on the warrant.
If the police get a warrant to search your house for drugs, this gives them broad search authority. Drugs can be hidden anywhere, so police can search your entire home. However, if the police get a warrant to search your house for a rifle, their authority is more limited. They can’t search small suitcases or containers that could not hide a rifle.
Searching beyond the scope of the warrant is another example of what can make a search warrant invalid.
During a Traffic Stop, Can the Police Search My Car and Frisk Me?
During a traffic stop, a police officer can often request that you get out of your car. If the police officer has a reasonable belief that you are armed and dangerous, the officer can frisk you. A frisk is a pat down of your outer clothing, looking for weapons that might endanger the officer. If the police identify a weapon or contraband by feel, they can remove it.
The police can also search your car if the following circumstances are present.
Reaching Distance of the Car
If you are under arrest, but still within reaching distance of the passenger compartment of the car, police can search your car. This means if the police have placed you in the squad car, this exception does not apply.
Evidence of a Crime
If the police have probable cause to believe your car contains evidence related to the offense of arrest, they may search your car for that evidence. So if police officers arrest you for expired registration, they can’t use this reason to search your car for drugs. However, if the police arrest you for driving under the influence, they may be able to search your car for alcohol or drugs.
My Car Was Towed and Impounded; Can the Police Search It?
Police can search your impounded car to take account of its inventory. However, police can’t impound your car just to search it. There must be a reason for them to impound the car, such as expired registration or the driver’s arrest.
How Can an Attorney Help?
If the police search you or your property without a warrant, we can file a Motion to Suppress that evidence preventing the State or U.S. Government from using the illegally seized items at trial. Most often, that is the only evidence that prosecutor has and the case would be dismissed.
If law enforcement did get a warrant, then we can challenge what the police provided a judge to convince them to sign the warrant. We have handled cases where the police state the exact opposite of the truth in the search warrant affidavit. he
If you’ve experienced a police search or seizure, contact a criminal defense attorney right away. U.S. law protects your constitutional rights through the exclusionary rule. This means that if police violated the law when searching or seizing property, they can’t use that evidence against you.
Call Petersen Law Office for a free consultation.
I’m Tom Petersen, a criminal defense attorney who has assisted over 6,000 criminal defendants. I’ll explain your charges, the penalties you face, and possible defenses. I will share what can make a search warrant invalid and determine if any of those defenses apply to your case. Then I will work aggressively to get your charges dismissed or reduced. Call today to set up a consultation and defend yourself against police search and seizure.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
Loading...