A police officer stops you after you didn’t see a stop sign. He asks for your license and registration (or insurance.) You comply with the officer, but a few minutes later, drug-sniffing dogs are inside and around your car. What brought this on? Is it illegal search and seizure?
What is illegal search and seizure?
In simple terms, it means a search and seizure conducted by law enforcement with neither probable cause that a crime is being committed or a warrant to conduct the search.
This type of behavior is illegal under the Fourth Amendment, which protects American citizens from improper or illegal search and seizure.
Additionally, any evidence that’s gathered from an illegal search and seizure is not admissible in court, under a doctrine known as “Fruit Of The Poisonous Tree.” Under the decision in Mapp Vs. Ohio, 347 U.S. 643 (1961), evidence gathered during an unconstitutional search is inadmissible in a state court criminal trial.
You can inform officers that if they do not have probable cause or a warrant, you do not consent to a search. If your car was searched by drug-sniffing dogs without your consent and they found something, without a warrant and no probable cause they may have committed an illegal search and seizure. Anything that was found in the process will not be accepted into evidence in court.
The Fourth Amendment
This simply stated part of the Constitution says that:
“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.”
A search, and any evidence collected from it, must have probable cause. If your home is searched, law enforcement are also required to have a warrant to perform a search. There are procedures that must be followed once a warrant is issued.
If the police show up without a warrant and ask to search your home, you can ask for a warrant to be issued first, and decline to consent to a search without one. A warrantless search could lead to procedures not being properly followed.
Warning: even if you state loudly that you do not consent to a search but the officer proceeds to search you anyway, do not resist. You could be charged with obstruction, assaulting a police officer, or other charges. But if the search is illegal, your attorney can file a motion to suppress, which will stop any evidence from the search from being introduced into court. You may also have a right to a civil court remedy as a result of the illegal search.
A search warrant does not give law enforcement the right to arrest you. They may gather any evidence in plain sight, and may look to see where you are hiding. However, if they gather enough evidence, they can arrest you based on that evidence.
The warrant and illegal search and seizure
This document must contain:
- The judge’s name
- Your name
- Your address
- The name of the agency conducting the search or arrest
- Descriptions of items that are being sought
An officer is not required to have the warrant on hand, but if he or she does, under Colorado law they must show it to you upon request. If an officer removes property from your home, he or she must give you a receipt for the property as well as a copy of the warrant.
Note that you do have the right to remain silent and not answer questions. Should they threaten to get a warrant, insist that they do so. They will have to go to court to get it, and may or may not be successful. However, if you consent to a search, they won’t have to get court permission.
If law enforcement insists on doing a search anyway, remain calm, do not interfere, and begin taking notes immediately. If someone is with you, ask them to witness the unconsented search. Record:
- Names
- Badge numbers
- Law enforcement agency or agencies involved
- Any other relevant information
Call a civil rights defense attorney immediately.
Section 1983
This section of US law (42 U.S. Code, Section 1983) addresses the abuse of the legal system to deprive another person of their civil rights, and allows people to sue the government for any civil rights violations.
For this section to be used, the defendant must have acted “under color of,” in a specific jurisdiction. That is, the individual was acting in his or her capacity as a representative of a governmental entity. A police officer generally does, whether patrolling or performing a search and/or arrest. Police who use excessive force generally come under Section 1983.
It is possible to sue for damages incurred during an illegal search and seizure, if you were arrested. You can sue for property damage, pain and suffering, lost wages and other expenses as well as attorney’s fees
Defend your rights — call today
If you’ve been a victim of an illegal search and seizure, defend yourself. Get a lawyer who is experienced in civil rights violations and Section 1983.
Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We understand civil rights cases, and aggressively defend you in court and make sure your rights are protected.
