Many people who meet with me on new felony or misdemeanor cases think that if they have been searched and the police did not have a warrant – any evidence found during the search is going to get thrown out or suppressed pursuant to a motion. This is sometimes the case but there are a number of exceptions to the requirement that officers must have a search warrant before they search. The defense team at LEWIS & DICKSTEIN, P.L.L.C. can help you understand when evidence should be thrown out or a Motion to Suppress should be filed. These exceptions are set forth below.
Search Warrant Exceptions
This seems fairly obvious but many people still have reason to question searches that are supposedly done based upon “consent.” If an officer stops you in the car and asks if he can look around, if you have consented to the search, you may have waived your 4th amendment rights. There may be circumstances when an officer was coercive or doesn’t leave a person the reasonable ability to do anything other than consent. In these cases, suppression of evidence pursuant to a suppression motion may be appropriate.
Your consent must be free and voluntary, without threat of force, violence or threat of other harm. Note that a warrantless search may be justified by consent even if a 3rd party who has common authority over the property consents. Examples of this type of 3rd party consent include: a landlord to common areas of the building; a tenant against a landlord, an employer with regard to an employee’s desk, a husband or wife against each other, a co-occupant against another, a person to whom you lend.
Search Incident to Arrest
If the officers make a lawful arrest then they may search the suspect. The search extends to the full body and the immediate area around it where an arrestee might have possession of a weapon. Persons in the vicinity may also be searched if the officers have a reasonable, objective reason to believe they may present a danger or destroy evidence.
If someone is arrested, a second search will likely occur during the booking process. This search may be “to protect your property,” the officers will be looking for evidence of crimes as well. The “official” purpose of the inventory search is to protect the officers against unwarranted claims of lost or stolen property and to protect the police from potential dangers. The ironic twist to this purpose is that the search is to protect the officers and the officers are the ones who are doing the search and inventory. Many of my clients have indicated to me that some of their valuables have disappeared during this process and failed to appear on he inventory. This rule also applies to impounded and seized motor vehicles. This may include closed containers that would ordinarily not be subject to search if their contents cannot be ascertained.
This exception allows officers to search based on probable cause and exigent circumstances that create a compelling need for immediate action due to danger to life or public safety. Exigent circumstances mean emergency circumstances. Exigent circumstances may also justify a search when officers are in hot pursuit of a suspect and there is reasonable cause to arrest. An example of a common warrantless search is one that results from 911 calls that alleging domestic violence. If the police arrive and are not granted entry, there is a high likelihood that the officers will force entry to check on the occupant’s health and welfare. A second example would be when officers respond to a call for help and see a nonresponsive person through the window. Entry without a warrant would be proper under these circumstances.
This exception to the warrant requirement is vast and courts continue to expand it at the expense of everyone’s constitutional rights. The courts have expanded this exception such that many of the other exceptions are no longer needed. Because an automobile is mobile, and it is driven on a public thoroughfare with occupants and contents available to public view, an exception has been created for vehicles in transit. There must be probable cause to believe to believe the car contains evidence or contraband or that the occupants of the car are engaged in criminal behavior. The automobile exception does not apply to a car in the garage of a house under surveillance or a car mounted on blocks not capable of movement.
This one may seem too obvious to even say but it comes up in court quite frequently. Officers may search and seize objects in plain view when they have probable cause to believe that the item in question is evidence of a crime, contraband, or otherwise subject to seizure. And the baseline requirement is that the officer must be in a place where he has a right to be when he observes the object to be seized. Subdivisions of this exception are the plain touch exception and the plain smell exception. For example, if an officer does a Terry Pat Down search by feeling the outside of a person’s pants for weapons and he feels what is obviously a pistol, the officer can go in the subjects pocket and retrieve the evidence.
An administrative search differs in nature and purpose from criminal searches. They are different because those searching are doing so for public interest and not for the purpose of searching for evidence of a crime. These searches are generally justified based upon public safety. These searches generally apply to questions of fire codes, health, safety and housing codes, licensing provisions. The object is not to arrest the person whose property is searched (although that could happen). An example would be a search upon entry into a courthouse.
How would I know if a search is legal or if evidence should be dismissed, expunged or suppressed?
You probably wouldn’t know. The analysis of determining whether a search violates the Fourth Amendment to the United States Constitution is highly complex and often requires a thorough analysis of federal and state laws and cases. Hiring a great criminal defense lawyer doesn’t give you a guarantee that evidence against you will be suppressed but it will give you the best chance. If a judge finds that a search was illegal, any evidence that was found or discovered as a result of the illegal search must be suppressed no matter how incriminating.
Moral of the Story
The mistake made by most people who are being investigated is that they think cooperation gives them a better chance of not being arrested or charged. This is simply not the case. Never make a statement to the police without the presence and advice of a top criminal defense attorney and never consent to a search. This does not mean that you should be not be respectful and courteous but you should NOT give a statement or consent to any search of your person or property. Standing up for your constitutional rights may be suspicious but voluntarily handing over evidence or making an incriminating statement is far worse. Police CANNOT arrest you are charge you with a crime because they are suspicious.
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