What is an Illegal Search and Seizure?

One of our many constitutional rights is provided by the Fourth Amendment. The Fourth Amendment guarantees that an American citizen is free from an unreasonable search and seizure. Many types of searches and seizures, however, are perfectly legal. This article will give you a step by step guide to determine whether you have been the victim of an unreasonable search and seizure.

Search and Seizure Definition

It is first important to know what the terms "search" and "seizure" mean. A search does not have a difficult legal definition. A search simply occurs when a government officer searches your person or property to look for evidence. A "seizure" occurs when a person does not believe that he or she is free to leave. If, for example, you are at your home and the police tell you that you cannot leave and you, therefore, believe that you cannot leave, a seizure has occurred.

Steps to Determining Whether a Search & Seizure is Illegal

There are several elements that must be fulfilled to have been a victim of an illegal search and seizure. Each of these elements must occur. If one has not been met, the search and seizure is legal.

Government Conduct

The search or seizure must be performed by a government official to be an illegal search and seizure under the Fourth Amendment. A police officer is perhaps the clearest example of a government officer.

Expectation of Privacy

An individual must have a reasonable expectation of privacy in the area searched for a search and seizure to be illegal. For example, if your home is being searched and you rent or own the home, you would have a reasonable expectation of privacy. If, on the other hand, you are holding something out to the public, you do not have a reasonable expectation of privacy, and, therefore, the search would be legal. This would include areas outside your home or areas that can be clearly seen by the public.

Search Warrant

To perform a search, the police must have a valid search warrant. There are, however, exceptions to the search warrant requirement. A search warrant must (1) show that there is a probable cause the evidence will be found in the area to be searched and (2) state with specificity the place or things to be searched. If the warrant does not meet these requirements, it is invalid.

Government officers may, however, argue that they believed the warrant was valid. If it was reasonable for them to believe that it was valid, the evidence collected may still be used.

There are certain exceptions that allow officers to search without a warrant, but they are outside the scope of this article. Generally, officers must have a search warrant.

Conclusion

The above steps outline the requirements to determine whether a search and seizure is illegal. If you have been the victim of an illegal search and seizure, the evidence obtained will probably not be able to be used in court.