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Mississippi Lawyer Blog

What is Illegal Search and Seizure - Can the Police Really Do That?

police cars on the road

(Image Credit: Wikipedia.org)

Most people are aware of the Fourth Amendment of the United States Constitution which protects them from illegal search and seizures. They may not, however, understand all the practical aspects of that right. 

Police officers in the state of Mississippi—or in any state—are not allowed to search a person, their home or their car. Anything resulting from an illegal search cannot be seized. There must be a very convincing belief that the suspect has committed a crime, or that a specific place holds evidence of that crime, in order for probable cause to exist.

That being said, unfortunately, illegal search and seizures are fairly common. Far too often, police officers conduct what they know to be an illegal search and seizure, on the chance a judge won’t throw out the illegally obtained evidence.

What is a Reasonable Expectation of Privacy?

We have a reasonable expectation of privacy in the following areas (meaning there must either be a warrant to search or a compelling reason to believe evidence of a crime has been committed or evidence of that crime can be found in a specific location):

  • The trunk or glove box of your car;
  • A public telephone booth, once the door is shut, (although there are few public phone booths left);
  • Our luggage, if it is not transparent;
  • Our office at work;
  • Our home (apartment, condo, hotel room), and
  • Our vehicle.

Do Police Officers Need a Warrant?

A warrant is generally necessary any time law enforcement wants to search a suspect, the suspect's house or the suspect’s car. In order to obtain a warrant, a judge must be presented with compelling evidence of probable cause. 

There are certain exceptions to the requirement for a warrant. If a police officer has a compelling reason to believe evidence is about to be destroyed by a suspect in one of those protected places, the officers may have legal justification to enter the suspect’s home, searching and seizing pertinent evidence.

The main examples in which the police may not need a search warrant include:

  • Consent—any time a person allows the police to search his or her house, car or person, no warrant is necessary;
  • Emergencies—If the police are pursuing an armed suspect into a neighborhood, it may not be necessary for them to have search warrants to enter the homes, as the fleeing suspect could be putting others at risk;
  • Plain view—anything which is in plain view does not require a search warrant, or
  • Searches incident to arrest - Once a person has been placed under arrest, a search of the person and his or her immediate surroundings for weapons is allowed.

Items which are in plain view can include such things as:

  • Drugs or a weapon on the seat of a vehicle;
  • Trash which has been placed at the curb for collection;
  • Public places such as a restaurant;
  • Areas in a business which are open to the public, 
  • A bloody area which can be seen through a front window of a home.

Therefore, the Fourth Amendment applies to searches only if there was a reasonable expectation of privacy. Courts usually ask whether the person could have reasonably expected some degree of privacy, and if those expectations are recognized by society. When the court finds an unreasonable search has occurred, no evidence from that search can be used against the person during the prosecution. This is sometimes known as “fruit of the poisonous tree,” meaning if the source of the evidence is tainted (the “tree”), then anything gained from the tree (the “fruit”) is tainted as well.

Additional Information Regarding Illegal Search and Seizures

Just because evidence has been excluded because of an illegal search and seizure, it does not necessarily follow that charges will be dropped, as there may be enough other, legally obtained, evidence to support the case. Illegally obtained information or evidence cannot be used by law enforcement as probable cause for a further search for evidence. Because the legal system is so complex, and because there are many precedents which must be argued and filed prior to a trial, it is actually rare for a self-represented defendant to ever have evidence excluded due to Fourth Amendment protections. Because of this, it is imperative to have an experienced Mississippi criminal defense attorney by your side from start to finish.

Contact Our Jackson Criminal Defense Lawyers

Whether you are accused or charged of a crime in State or Federal Court, our experienced Jackson criminal defense attorneys can help. 

At Coxwell & associates, PLLC our attorneys have the earned reputation for giving the best advice and help in the area of criminal defense. If you have a question please give our criminal defense attorneys a call for a complimentary consultation at 1-601-948-1600 or 1-877-231-1600.

CTA Coxwell & Associates

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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