legality of searches and seizures

Search and seizures on someone who is walking down on the street: When are they legal?

Anyone who has been stopped by the police has had the same questions. What are the police allowed to do? Can they stop me for no reason? When they stop me, are they allowed to just search me however they want? Do I have any legal protections against illegal search and seizure?

There are, in fact, strict limits as to what the police are allowed to do regarding street side stops, searches and seizures. If you have been stopped by the police while walking down the street, you need to know your rights and understand what the police can and can’t do.

What is a search and seizure?

As Americans, we have a right to be free from unreasonable search and seizure, as guaranteed by the Fourth Amendment to the Constitution.

In general, for the police to stop someone and search them, or search someone’s property, etc., they need to have a search warrant. With a warrant, they can conduct a search that is limited to the scope of the warrant.

But, of course, in most cases involving police stops and searches on pedestrians, the police are proceeding without warrants.

Proceeding without a warrant: The reasonable suspicion requirement

Although the police are supposed to have a warrant, there are situations in which it is legal for them to stop a search someone without a warrant.

However, the police cannot stop you and search you for no reason. They need to have “reasonable suspicion” to justify the stop.

The case that has dictated the police’s reasonable suspicion requirement is Terry v. Ohio, 392 U.S. 1 (1968). In this case, the court determined that a police officer is justified in a warrantless stop and search is the officer has a reasonable belief that he or she, or the people around them, could be in danger from the person being stopped. In this circumstance, the police can conduct a reasonable stop and search to discover any weapons on the pedestrian’s person.

Once the stop is made, the police officer cannot hold you indefinitely. The stop must be limited to a reasonable time to conduct the search that warranted the stop. This means that the police cannot search you for a minute, then hold you there for no reason for two hours after the search.

Complications and exceptions

There are numerous complications and exceptions when it comes to the legality of stops, searches and seizures. All these nuances will depend on the specific facts of your case. If you have been stopped and searched, an experienced lawyer can help you determine whether the police action was legal, and what remedies you have available.

Why does this matter?

The reason these limitations on police action are so important is this: A violation of these rules could destroy their case against you in court.

The exclusionary rule

The exclusionary rule is simple. If an officer obtains evidence as part of a search that violates the rights of the person searched, that evidence is excluded in court. Without adequate evidence, the prosecuting attorney cannot win the case, so, in most cases, the charges are dropped.

Here’s a hypothetical example

A pedestrian is walking down the street alone. She is not making any sudden movements or acting suspiciously in any way. An officer stops her, and he pats her down. In the pat down, the officer discovers a bag of marijuana.

In the ensuing court case, the evidence of the marijuana in the pedestrian’s possession is excluded from the prosecutor’s evidence. Without this critical evidence, the prosecutor has nothing on which to base her case, and the defendant can go free.

What you should do

This is a simple example to illustrate how the exclusionary rule works in practice.

If you have been stopped and searched and are facing charges, and you are facing criminal charges as a result, you need to get help to defend your rights. A good lawyer will be able to break down all the facts of the stop and the search to determine whether there is any evidence of a violation of your rights which could result in the charges against you being dropped.

CategoryLegal Advice


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