In part I of this series on Search and Seizure law we covered the basic
elements of the Fourth Amendment and protecting your privacy. Remember
the Fourth Amendment provides “the right of the people to be secure
in their persons, houses, paper, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
If a search and seizure violates the Fourth Amendment and a court finds
the search unreasonable, any evidence seized as a result to the search
cannot be used in the case against a criminal defendant. This is referred
to as suppression of the evidence. This does not necessarily mean that
your case will be dismissed, the Government could try to proceed with
other evidence, but your rights are protected in that no evidence that
was unlawfully seized can be used against you.
The following are some additional frequently asked questions in regards
to Search and Seizure laws:
Can the Police search my apartment if my landlord consents?
No. Your apartment is your private property and you have a reasonable expectation
of privacy in your apartment. The landlord can not give valid consent
to search your apartment because your lease and rent guarantees your privacy
at home. Even though your landlord normally can enter your apartment in
order to conduct inspections and repairs, most leases state that the landlord
will give advance notice of entry. If someone alleges that a person is
conducting illegal activity in your apartment, law enforcement must secure
a warrant before entering your apartment. However, always remember that
an officer will always be able to conduct a search if YOU consent. So
that proud “Go ahead search, I have nothing to hide” is never
recommended. Call an attorney immediately and make it clear to the officer
that you are not consenting to a search of yourself or your home.
A cop search me because he said he smelled burnt cannabis on my clothes,
is that legal?
Yes. The courts have consistently held that if an officer smells the odor
of cannabis coming from you or a vehicle that you are in, that gives rise
to probable cause to search you and a vehicle that you are in due to the
reasonable suspicion that illegal drugs have recently been or are being
consumed. This is reasonable suspicion is subject to scrutiny by the courts.
Some courts have held that the odor of cannabis alone is insufficient
to justify a warrantless search where the officer has limited experience
or knowledge in regards to how long the aroma of marijuana can linger.
For example if an officer testifies that the odor of marijuana can last
over 24 hours, and then it is unreasonable for an officer to assume you
are involved in criminal activity solely based on the odor of marijuana.
The key to protecting your rights in this situation is Remain Silent and
do not Consent to a search of yourself or your vehicle.
If the Police have a warrant to search my garage, can they search my whole house?
No. The police are limited in their lawful search under a warrant to the
place described in the warrant. Normally they can only look in places
that the property described in the warrant would reasonably be located.
For example if a warrant states that the police are to seize stolen riffles
located in your garage, the police could not search a briefcase in the
garage because a riffle would not fit in a briefcase. The police can not
lawfully enter your house to look for riffles if the warrant specifically
limits their search area to the garage. Remember as stated in our last
article, all violations of your Fourth Amendment rights are washed away
if you consent to the search. So if the warrant says garage, do not consent
to a search of your car, home or shed.
Only you can protect your rights when encountered by the police. Knowing
your rights will help you avoid mistakes that can become very harmful.
If in doubt, ask to speak to an attorney immediately and exercise your
right to remain silent after that.