The Fourth Amendment of the Constitution protects an individual against unreasonable searches and seizures of his or her person or property. A search may involve an inspection of the person or his or her surroundings or property, and seizure refers to taking the person or property into police custody. Usually, but not always, if a seizure is invalid, it is because the seizure was preceded by an invalid search.

In many drug cases, the arrest and evidence used to support a conviction generally result from a search and seizure. If the constitutional limits were not applied to the government’s conduct, however, the evidence may be deemed inadmissible and the charges may be dismissed or unprovable. An experienced criminal defense attorney can advise his or her clients on whether the evidence leading to a drug charge may have resulted from an improper search or seizure and answer all other questions regarding the criminal justice process in drug cases.

A “search” does not technically take place unless the investigation intrudes on a person’s privacy. Thus, there generally is no search if the police find a bag of drugs lying on the sidewalk or hanging out of someone’s pocket. On the other hand, if they look in a bedroom drawer to find the same bag of drugs, that conduct will generally be deemed a search. The distinction lies in the “reasonable expectation of privacy” involved. If someone has a reasonable expectation of privacy in an area of his or her person or property (such as in a house or vehicle), the police investigation of that area is deemed a search. If there is no such expectation, or if the expectation is not reasonable, no search has been conducted for constitutional purposes.

Searches conducted pursuant to a judge-authorized warrant are generally deemed reasonable unless the warrant was improperly obtained. A search warrant must describe the area to be searched and what the police are searching for. The search must be reasonable in relation to the evidence sought. For example, if the police claim to be searching for a car, they can look in a garage but will not be able to look in a toolbox in the garage. Evidence gathered pursuant to a proper search can generally be seized if it relates to the crime being investigated.

Searches can also be valid if they are done with the consent of someone who has control of the property, which need not be the owner. During an arrest, however, consent to a search is not necessarily required; police can search the arrestee and the immediate surroundings for weapons or evidence that might be destroyed. Following similar reasoning, police may search without a warrant when the search is necessary to protect against destruction or removal of evidence. This is a commonly used exception to the warrant requirement. Police may also conduct searches to protect the public from imminent danger, such as the planting of a bomb, or to search for fleeing criminals.

Seizures of Persons
There has been considerable litigation involving when the government (usually the police) can restrict someone’s movement, or “seize” them. Police interactions with individuals may range from an investigatory stop to a full-blown arrest. The more freedom retained by the person when the police interact with him or her, the lower the level of suspicion required for the police to engage in that interaction. For example, if police merely stop someone to ask questions, all that is usually required is that the police have a reasonable suspicion that a crime has occurred or that the person is in need of assistance. If there is no control and a person is really free to leave, there is no seizure. However, in many instances in which the police stop a person, that person has a reasonable perception that he or she is not free to leave.

If a person is subject to seizure, such as an arrest, that seizure can, like a search, be made pursuant to a warrant. Since a warrant is a court order authorizing an arrest or search when there is a warrant the seizure is presumptively valid. The presumption of validity can sometimes be overcome, however. For example, a warrant may be invalid if it was obtained on the basis of false or misleading statements to the judge. If the police did not have a warrant, the burden is on them to show that the circumstances justified the seizure. In most instances, the police will have to demonstrate “probable cause,” that is, a reasonable belief that a crime had been or was going to be committed and that the person seized was involved in the crime.

If an arrest or other seizure of the person is invalid, the person must be released. If the police obtained evidence as a result of the invalid arrest, the government may also be prohibited from using that evidence at the person’s trial based on the “exclusionary rule.” This rule also applies to evidence that was obtained as the result of an invalid search.

The police may legitimately search persons and property, and seize both persons and property, either with or without a warrant if the circumstances justify their actions. If they act without probable cause, however, or exceed constitutional limitations on their actions, both searches and seizures may be deemed invalid and any resulting evidence may be tainted and thus inadmissible. If you have been charged with a drug-related crime and have questions about whether the police may have violated your search and seizure rights, contact a knowledgeable criminal defense attorney now.