When a law enforcement officer makes a drug-related arrest, there is a very good chance that a search occurred prior to, or immediately after, the decision to make that arrest. Whether that search involved a search of the suspect’s person, a vehicle, a business, or a home is important because the law views searches differently depending on what was searched. If a search was conducted without following the proper procedures – something that happens with some regularity – any evidence seized as a result of that search may be inadmissible at trial. In an effort to help you better understand your rights as a suspect, an Omaha drug delivery and possession attorney explains the warrant requirement.
The Fourth Amendment
In the United States, we have a federalist form of government which includes a strong central government (U.S. federal government) along with numerous smaller, semi-autonomous governments (individual state governments). Although the states can (and do) make laws, no law may violate the rights found in the U.S. Constitution which is the highest governing body of law we have in the U.S. We are fortunate in the U.S. to be protected by a number of rights and privileges guaranteed to us in that 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.”
The Fourth Amendment stands for the proposition that anytime a law enforcement officer wishes to conduct a search and seizure that officer must first obtain a warrant, based on probable cause, and signed by a judge. While that is indeed the starting point for analyzing the warrant requirement, it has changed some in the 200 plus years since it was written.
The Fourth Amendment in Action
The Constitution was drafted over 200 years ago. Despite its age, the concepts and ideals found in the Constitution are still largely applicable, although the courts have had to interpret and “tweak” those concepts some to allow for the very different world we live in now. The 4th Amendment warrant requirement, for example, is still alive and well; however, it has been watered down some over the years. Anytime a search and seizure uncovers evidence that the State wishes to use at trial, there is a chance the defense will challenge the legality of the search.
Whether or not a court ultimately finds the search to be legal or not will depend entirely on the very specific unique set of facts and circumstances involved in the search and seizure. As such, the only way to find out if the search and seizure that occurred in your criminal case was potentially illegal is to consult with an experienced criminal defense attorney. There are, however, some general rules that apply to the warrant requirement in the 21st century, including:
- Search of your home – your home remains the most heavily protected by the warrant requirement. Unless one of the few narrow exceptions to the warrant requirement apply, a warrant is still required to search your home. The exceptions include:
- Consent
- Plain view
- Incident to arrest
- Emergency
- Search of your vehicle – the law has established that you have less of an expectation of privacy in a vehicle than in your home. Therefore, an officer is not usually required to obtain a warrant to search your vehicle if the officer has probable cause to believe the vehicle contains contraband or evidence of a crime.
- Search of your person – when it comes to searching your person, the law gets even more convoluted. An officer may be allowed to conduct a “stop and frisk” which entails a pat-down of your clothing to make sure you don’t have any weapons; however, if the officer encounters drugs (or other contraband) that are immediately apparent as contraband, it may be legal to seize the drugs as well.
Contact an Omaha Drug Delivery and Possession Attorney at Petersen Law Office
If you have been charged with a drug-related criminal offense that involved a search in the State of Nebraska, do not hesitate to consult with an experienced criminal defense lawyer 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.
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.
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