It is rare for a drug-related arrest and subsequent prosecution to not involve a search and seizure of some type. In some cases, a police officer stops a single individual for any of a wide variety of reasons and ultimately conducts a search of his/her person that turns up a relatively small amount of a controlled substance. Another common scenario involves a traffic stop that leads to the search of a vehicle upon which a controlled substance is uncovered. Conducting a search of your home is yet another possible path to the seizure of drugs that will lead to criminal charges being filed against you. In all of these scenarios, a search and seizure occurs. If that search and seizure violated your constitution rights, the evidence seized could be declared inadmissible at trial. Although every case involves a unique set of facts and circumstances that must be analyzed by an experienced criminal defense attorney to determine if the defendant’s rights were violated, an Omaha drug crime attorney explains the basics of search and seizure law to help you better understand your rights.
Your Constitutional Rights
In the United States, we are fortunate to be protected by a number of rights and privileges guaranteed to us in the U.S. Constitution. Most of those can be found in the first ten amendments, collectively referred to as the “Bill of Rights.” The right to be free from unreasonable searches and seizures can be found in the Fourth Amendment to the U.S. Constitution which reads as follows:
“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 the Fourth Amendment Mean?
The strength of the protection afforded by the 4th amendment has been watered down somewhat by the courts that have interpreted it over the years; however, in general, it stands for the concept that a law enforcement officer cannot conduct a search of your person, property, or things without first obtaining a warrant that must be based on probable cause. Probable cause, in turn, requires a logical belief, supported by facts and circumstances, that a crime has been, is being, or will be committed or that evidence of a crime will be found at the location to be searched.
The Fourth Amendment in Practice
As written and interpreted literally, the 4th amendment requires the police to secure a search warrant in order to conduct any search. The courts, however, have chosen to interpret the 4th amendment more liberally, finding a number of exceptions to the warrant requirement. As it stands today, the following is a brief overview of when and how the police can conduct a search and seizure of your person, your vehicle, or your home.
- Your person – named after the case that created the rule, a “Terry stop” or “stop and frisk” may be conducted if a police officer has a reasonable suspicion that a person is involved in criminal activity. The officer may conduct a “pat down” warrantless search of the out clothing to check for weapons or contraband but may only seize an item if it is immediately apparent that the item is contraband.
- Your vehicle – a warrantless search of your vehicle may be conducted during a traffic stop if you consent, under the guise of an “inventory search” if you are arrested and the vehicle is impounded, or if the officer has probable cause to believe that evidence of a crime will be found in the vehicle. Note: The officer is not allowed to detain you for an unreasonable amount of waiting for a K-9 unit to arrive to conduct a drug sniff.
- Your home – your home remains well protected by the 4th A warrant is required to search your home unless one of the following four exceptions applies:
- You give consent to search
- An officer sees evidence of a crime or contraband in plain sight
- An officer is effectuating an arrest in the home (limited search in the arrestee’s immediate zone of control)
- An officer is in “hot pursuit” and chases someone into the home or an emergency exists (officer hears screams for help inside the residence)
Contact an Omaha Drug Crime Attorney at Petersen Law Office
If you have been charged with a criminal offense in the State of Nebraska, consult with an experienced Nebraska criminal defense attorney as soon as possible to ensure that your rights are protected. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
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