The U.S. Constitution makes it unlawful for law enforcement officers to conduct searches and seizures without following legal protocol. If police perform a search and seizure unlawfully, arrest an individual and accuse him or her of crimes as a result, the accused person might be able to get the charges thrown out.
Let's say you're at home enjoying the football game on the weekend after a long week working construction and you get a knock on the door. The police forcefully enter your home and start rummaging through your things until they find something they can use against you in court. Then they arrest you and accuse you of a crime.
If the police did not have proper authority to conduct the search, they may have violated your civil rights under the U.S. Constitution.
What is "searching" under the law?
To better understand the complicated legal issues surrounding search and seizure, first, we need to understand what is considered "searching." In order to ascertain if searching took place, the court will consider the following questions:
- Did the searched person expect that the searched area was private?
- Was the privacy expectation reasonable given prevailing societal attitudes?
An investigation becomes a search when a court discerns that the investigation at issue has intruded upon or impinged upon the searched individual's legitimate expectation of privacy. If you answered yes to both the above questions, it is likely that police searched you. Now the question becomes: Did authorities follow legal protocol when they searched you?
Police usually require warrant, but sometimes they don't
If the police have a strong, irrefutable reason to suspect you committed a crime, they might be able to conduct a search of your home or person without first obtaining a warrant. They can also conduct a search if they obtained a search warrant, which is a judge's or magistrate's order giving them the right to conduct a search.
Can you fight back after an unlawful search?
One of the first things that a criminal defense attorney will look for when representing a client accused of a crime is to determine if police violated the law during search and seizure operations, and/or if protocol violations were made an arrest. When the lawyer identifies such violations, he or she may be able to advocate for the prosecution to drop the charges, or for the judge to dismiss them. By speaking with a criminal defense lawyer about the circumstances of their arrests, Tennessee defendants can evaluate what legal strategies may be most appropriate in their cases in this regard.