What is Unlawful Search & Seizure?

Virginia Search and Seizure Laws

The 4th Amendment of the U.S. Constitution is designed to protect our rights from unwarranted search & seizure of property & documents by government & law enforcement officials. However, the 4th Amendment does include probable cause as a way to grant power to authorities in a restricted capacity.

What Is Protected

According to the Fourth Amendment, “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…” This means that in the United States, the general rule is that government agents cannot search your home, business, or even your own pockets, unless they have convinced a judge to let them. Absent a few exceptions, police officers or any other law enforcement do not have the right to search you or your possessions until they have established “probable cause,” which we will discuss more in the next section, before a judge or magistrate.

The Fourth Amendment would be toothless if police could use illegally obtained evidence, so the law prevents the use in court of any evidence found during an unreasonable search. This is called the exclusionary rule. A court must throw out any evidence, both primary and secondary, that is found as a result of an unreasonable search and seizure, and it may not in any way be considered by the jury. For this reason, police must be extraordinarily cautious when making arrests and searching people’s property: if the arrest is found to be unwarranted and the search unreasonable, the entire case could be dismissed if the only evidence, no matter how valid, was improperly obtained and therefore impermissible.

What Is Not Protected

The Fourth Amendment applies only if an individual has what is known as a “legitimate expectation of privacy.” To determine this, the courts have a two-part test: 1- did the person actually expect privacy, and 2- is the expectation of privacy reasonable by society’s standards? For example, a marijuana grower who leaves his front window open to allow sunshine to bathe his crop cannot reasonably expect to keep his activities private. Any police officer who happens to see the plants as he or she is walking by would be justified in securing the home and seeking a search warrant for recovery of evidence of marijuana manufacture. The grower may have expected privacy, but society in general believes that closing curtains is appropriate if you don’t want the world seeing your living room.

If you are suspected of committing a crime, then police may opt to petition the court for a search warrant for your home or office if they have probable cause to believe that they will find evidence they are looking for. However, they must be specific when petitioning for these warrants: they must list what they actually seek and why they expect to find it in the home they wish to search. If they fail to do so, or if the warrant does not authorize them to search in the location where they actually discover the evidence they sought, the evidence they seize can sometimes be excluded from trial.

Private Security

It’s important to note that the Fourth Amendment only applies to government agencies and law enforcement. The Amendment was put in place to protect us from the government, not from each other. Private security officers and citizens are not bound by the exclusionary rule and may submit any evidence they find to law enforcement to be used against you. For example, if you attempt to shoplift a pair of pants by smuggling them out in a backpack, security may stop you, search your backpack, and then detain you upon finding the evidence in order to turn you over to the authorities. The pants will then be permitted as evidence to be used against you in court. Since no government officer performed or condoned the warrantless search and seizure, the exclusionary rule will not help you in this case.

This also allows private security to search you before entering private property, such as a concert or sporting event venue. If you have anything on you that is a forbidden item, they will require you to disclose this and could even turn you away or have you arrested upon discovering it. Government agents may search you prior to entering some secured public property, airports for example, based on predetermined public-safety exceptions to the Fourth Amendment.

If you have been arrested, it is important to allow a Fredericksburg criminal defense attorney to review the evidence in your case as soon as possible to determine if any searches and seizures were unlawful. Andrew J. Cornick, Attorney at Law, and his skilled team have extensive experience putting the evidence in a case to work protecting their clients to the fullest extent of the law. We understand the finest nuances and complexities that may emerge in your case, and we pool our firm’s extensive amount of experience and legal knowledge together to prepare and develop the best possible strategy for your defense.

Start reviewing your case with me now! Contact Andrew J. Cornick, Attorney at Law by calling (540) 827-4446 and requesting a free case evaluation.

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