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Can the police search you or your property without a search warrant? What happens if the search is illegal?

Posted by Dmitry Gorin | Jun 10, 2007 | 0 Comments

This question addresses Search and Seizure Law which provides protections to all people from unreasonable police infringement on their rights, as provided in the Fouth Ammendment in the U.S. Constitution. The bottom line in court is whether the search is legal or not. In cases where there is a search warrant, a judge has reviewed the officers' reasons for the search in advance. In other words, the judge has signed off on the search, meaning that if what the police told him under oath him is true, there is sufficient cause to search a certain location. In cases where there is no warrant, the police upon observing suspicious activity justify a search of your person, your car, or your home based on their own opinion. Because this type of search is not judicially preapproved, it receives more scrutiny from courts after someone is arrested and charged. A defense attorney files a Motion to Suppress Evidence to prevent illegally obtained evidence from being used in court against a client pursuant to the provisions of Penal Code Section 1538.5. If the judge finds the police violated a person's constitutional rights, the officers did not have sufficient cause to search you or your property. Thus the recovered incriminating evidence, ie. drugs, firearms, or any other illegal items, is excluded from court which often leads to the case being dismissed. Or, if the police stopped your car for improper reasons to later conduct a DUI investigation, the entire DUI case is dismissed. Tagged as: faq, juvenile law, motion to dismiss unlawful police search


Tania Bakar on November 11, 2009 at 2:27 a.m. wrote: This is an interesting post, because it shows how there are hyper-technicality laws in our judicial system. One would think that it is important to be able to introduce and use all evidence that is found/provided in a case. However, it is also important to remember that evidence obtained unlawfully had to be dismissed from the courtroom. These rules that are there for our protection, although can sometimes lead to having cases dismissed, are actually important. The reason they are important is because it prevents others from abusing their powers and infringing on our rights. Once we allow evidence that is not obtained lawfully to enter the courtroom, then a slippery slope will ensue. People's rights will be violated more frequently. It is easy to be on the other side and to say that it is only fair when there is evidence that can prove someone's guilt that it be used in the court. However, I believe that it is a different story when we put ourselves in the same situation. When that happens I guarantee that people will feel otherwise. Law Blog on June 14, 2007 at 11:02 p.m. wrote: Wiretap laws are very strict, and do provide tremendous protections to individuals in their home. To overcome such constitutional protections, the goverment must demonstrate a substantial need to tap into someone's conversations and get this action preapproved by a judge. Such drastic government conduct is usually approved in cases where the government argues: 'we have tried other means of investigation, they have failed, and we must resort to a wiretap.' Warrants for wiretaps are typical in cases of organized crime, including gangs, drug cartels, or murder cases. Again the government must typically first demonstrate an inability to do conduct the investigation by less constitutionally-intrusive means. Rianne H on June 14, 2007 at 5:59 p.m. wrote: When is it OK for cops or other law enforcement agencies to use wiretapping? I hear all of the time that the Patriot Act allows for the government to taps phones of those who they believe pose a threat to national security. Why isn't this illegal search and seizure? I recently studied a case that kind of deals with this issue: Katz v. United States - 1961 Katz was arrested for illegal gambling after using a public phone to transmit 'gambling information.' The FBI had attached an electronic listening/recording device onto the outside of the public phone booth that Katz habitually used. They argued that this constituted a legal action since they never actually entered the phone booth. The Court, however, ruled in favor of Katz, stating the Fourth Amendment allowed for the protection of a person and not just a person's property againsty illegal searches. Whatever a citizen 'seeks to preserve as private, even in an area accesible to the public, may be constitutionally protected.' So this guy was protected even though he was using a public telephone, shouldn't the laws be even more strict to protect the conversations that take place inside a person's home- on their own telephone line? What makes this case different from the incidents of wiretapping permitted by the Patriot Act? Is it because Katz' gambling was not a threat to others that his privacy was protected? Law Blog on June 13, 2007 at 12:29 a.m. wrote: Officers often become aggressive in their tone, and manner, when they do not get 'consent' which is what they wanted in your friend's home. They will badger and harrass to obtain a 'consent' search (keep in mind that such police conduct may be coercive and may make an entire search illegal). Really the only remedy for the police is to obtain a search warrant, which is unlikely if all they are concerned about is a loud party. A search warrant requires a signed affidavit, an approval by a judge, and a return to the judge after the search is completed. This is a lot of work for rousting a college party. Law Blog on June 13, 2007 at 12:24 a.m. wrote: Once the case is dismissed because evidence is illegaly obtained, it is over, so long as the police do not recover any new evidence showing you committed the charges that were dismissed. So if say a murder case is dismissed because a confession is illegally obtained, the police can refile the murder charge is they find additional evidence the suspect is guilty - such as DNA, fingerprints, new witnesses. The above analysis applies to felonies only. If a misdemeanor charge is dismissed, it cannot be refiled even if new evidence is discovered. Amy Y. on June 12, 2007 at 3:47 a.m. wrote: 'In cases where there is no warrant, the police upon observing suspicious activity justify a search of your person, your car, or your home based on their own opinion.' Would throwing a party with loud music warrant the police officer to search your home? I had a friend who refused to let an officer into his home. The officer became defensive and threatened to arrest the underaged drinkers he was 'sure to find' in the party. Is it not true that so long as you close the door behind you and step outside to talk to the police officer, he is not allowed to step into your home? Vasyl G. on June 12, 2007 at 12:47 a.m. wrote: Since the illegal evidence cannot be used in court and the case is dismissed for those reasons, does this mean that you are free and clear? Or, does the police still keep records of what they discovered through an illegal search such as drugs?

About the Author

Dmitry Gorin

Find me on Google+ Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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