“Illegal search and seizure” is a term that is often mentioned in the news, but what does is mean for citizens and their guns?
The Fourth Amendment of the United States Constitution protects citizens from illegal searches and seizures, meaning that any government agent (FBI, ATF, police, etc.) must have a warrant supported by probable cause before searching or seizing a person or their property.
A warrant is a document that must be signed by a judge or magistrate. Probable cause means that there must be a valid link between the person or place being referenced in the warrant and criminal activity.
A search is an invasion of a place or person. When searching a place, it is only considered a true search if someone has a reasonable expectation of privacy in that place – such as a home.
A search of a person includes things such a pat-down, or more invasive searches such as a blood draw. A seizure is when the police either confiscate an item or take an individual into custody.
When The Police Don’t Have A Warrant
In some situations, the police can search and individual or his property without a warrant. The first exception is when there are exigent circumstances (i.e. an emergency situation) which justify an immediate search.
A search is warranted if the officer believes a crime will occur if he or she does not immediately conduct a search. An example of a valid warrantless search is if a wanted fugitive runs into a residential home.
The police will not wait for a warrant to search the home because doing so will give the fugitive time to escape. Another exception to the warrant requirement is searches in places which don’t have a reasonable expectation of privacy.
The best example of this type of warrantless search is in an airport. The use of drug sniffing dogs and the thorough searches conducted by TSA have all been found as valid uses of warrantless searches by the United States Supreme Court.
Even if you do have a reasonable expectation of privacy for a certain place, the police can search it if you consent. If the police come to your door and ask to search your home, you have the absolute right to refuse the search and demand to see a warrant.
The police are also able to search a person, their vehicle, and their personal effects as an incident to arrest. This means that if you are pulled over for a valid traffic stop, and that stop leads to an arrest (for example, if the police take you into custody for suspicion of a DUI after a traffic stop), then the arresting officers can search your vehicle, backpack, purse, etc.
Stop and frisk is a controversial procedure which allows officers to stop random citizens who look like they might have a gun and pat them down without a warrant. Chicago tried using stop and frisk in the past, but the practice was ended after it was determined that minorities were searched disproportionately to other citizens.
A similar policy in New York was recently found unconstitutional for similar reasons. While stop and frisk is currently not standard policy in Chicago, it does not mean that it will remain that way forever.
Finally, police can seize something that is in plain view. For example, if you have a handgun in the waist of your jeans and it is clearly visible when you are in public, the police may stop you and seize the weapon.
For those that have concealed carry licenses, this means that you must keep the gun out of sight when in public (unless your job allows you to carry it openly). If the police must remove or adjust anything (e.g. open a bag to view what is inside), then the plain view exception does not apply.
What Happens If The Police Conduct An Invalid Warrantless Search?
Even though there are many exceptions, the general rule is that police must have a warrant to search an individual. If the police search someone without a valid warrant and they did not have a legal exception for the search, then any contraband or weapons found cannot be used against the defendant.
For example, if the police pull someone over for no reason, arrest the individual for a DUI, and find a gun in the glove compartment, the police cannot use any of the evidence collected (including the gun) against the individual in court. In fact, the entire stop would have to be excluded from mention in the case.
Call Abdallah Law Today
The laws regarding search and seizure are complicated, but the experts here at Abdallah Law are experts in the field.
We will review your case and work hard to protect your constitutional rights. Contact our offices today at 312-854-2677 for a free consultation today.