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Holland & Usry, P.A.

Your Right to Protection from Warrantless Searches

The Fourth Amendment to the United States Constitution shields Americans’ privacy. Other lawyers will tell you that the Fourth Amendment prohibits unreasonable searches and seizures, and requires any warrant to be judicially sanctioned and supported by probable cause. This means that if the police wish to search you or your property, they need to get permission from a judge, after providing that judge with evidence showing that criminal activity has probably occurred.

The judge doesn’t automatically issue warrants when the police for them.

The Exclusionary Rule

An illegal search or illegal seizure is a violation of your Fourth Amendment rights, and any evidence seized must be excluded from trial. Even if that evidence is very damaging to your defense, it cannot be considered (or even mentioned to the jury).

Does this mean that all searches conducted without a warrant are invalid? No, not at all. A warrantless search will be valid—and any evidence obtained from the search will be allowed in trial—if the search falls within one of several well recognized exceptions. The burden is upon the prosecution to establish probable cause and the existence of circumstances constituting an exception.

When Don’t the Police Need a Warrant?

The law recognizes that police are often working under pressure to protect public safety. That’s why there are quite a few exceptions to the requirement to obtain a warrant. Some of the most important situations where police where police have probable cause and where they may conduct a warrantless search are as follows:

  • Terry pat. The police may briefly detain and conduct a reasonable search for weapons where the officer has reason to believe the person is armed.
  • Auto stops. Once a vehicle has been lawfully detained for a traffic violation, police may order the driver out of the vehicle and conduct a search for weapons, when the officer believes that the person is armed and dangerous.
  • Incident to lawful automobile arrests. If the police arrest someone who has been a recent occupant of a vehicle, they may search areas of the car if the person being arrested is within reaching distance of the passenger’s compartments at the time of the arrest or if it is reasonably believed the vehicle contains evidence of the offense of arrest.
  • Consent. Any time a person gives permission to the police, he forfeits his Fourth Amendment protections. The police then may search the individual’s body, clothing, vehicle, home, or anywhere else that the person has given consent. Here’s a free bit of advice: when dealing with police, never consent to any search.
  • Exigent or extreme circumstances. If the police reasonably believe that evidence may be destroyed or removed before they can obtain a warrant, they may conduct an immediate search.
  • Plain view doctrine. If the police have a lawful reason to intrude (such as a lawful traffic stop) and incriminating evidence is immediately apparent to the police (for example, at the time of this traffic stop something illegal is sitting in clear view in the back seat).

If you have been charged with a criminal offense it is important to hire a criminal defense attorney who is familiar with these various legal concepts. If a warrantless search is deemed to be invalid and the evidence is suppressed, the state may be unable to convict you. This is particularly true in possession of illegal substances cases.

If you wish to discuss this with the attorneys of Holland & Usry, please contact us at 864.582.0416 or toll-free at 888.230.1841 to schedule a free, confidential consultation.