Searches- Blaine McChesney Law

THE POLICE FOUND EVIDENCE. IS IT ADMISSIBLE IN COURT?
The Five Types of Searches

1. Warrant Search

What is a search warrant?
Normally, a police officer presents a judge with a sworn document, called an affidavit, which names the place or thing to be searched. The affidavit also explains why the officer believes that evidence of a crime may be found inside. The judge then determines whether the information in the affidavit contains enough information to support a search. The legal standard that the information must meet is called probable cause.

How might a lawyer help me?
A lawyer can review your case to see if the warrant was obtained and executed lawfully. If not, the evidence could be excluded. Some common defense arguments include:
a. The affidavit lacked probable cause.
b. The warrant failed to specifically state the place to be searched.
c. The officers exceeded the scope of the warrant.

2. Probable Cause With Exigent Circumstances

What is a probable cause search?
In some circumstances, police may conduct a search without a warrant if they have two things. First, they must have probable cause to believe evidence of a crime may be found. This is the same standard that must be met to get a warrant. Second, there must be some exigent circumstance (one that makes getting a warrant impracticable or impossible). Although the list is certainly not exclusive, here are some common examples of these searches:
a. An officer sees or smells contraband in a car during a traffic stop.
b. An officer responds to an emergency inside a home and sees contraband.
c. A drug dog “alerts” on a car during a traffic stop.
d. An officer is chasing a suspected dangerous felon (in hot pursuit) who runs into a house.
e. An officer sees drugs on a kitchen table thru the window. The residents see the officer, grab the drugs, and run to the back.

How might a lawyer help me?
A lawyer can review your case to see if the officer had both probable cause and an exigent circumstance. If not, the evidence could be excluded. Even in the examples listed above, there are often arguments to suppress the evidence that was obtained.

3. Stop and Frisk

What is a stop and frisk (aka pat-down) search?
When police encounter a person that they suspect may be armed with a weapon, they can pat-down the outer clothing for their safety. If the officer feels a weapon or contraband they can seize it. A warrant is not necessary for a pat-down.

How might a lawyer help me?
A lawyer can review your case to determine whether the officer’s suspicion of a weapon was justified in the circumstances. If not, the evidence could be excluded. An officer needs more than just a hunch that a hidden weapon exists. In addition, they need a reason to detain you in the first place.

4. Search incident to arrest

What is a search incident to arrest?
When police have arrested a person they can search the person at roadside and again at the jail. In addition, if they arrest was after a traffic stop, they can usually search the passenger compartment of the car. A more complete search of the car, including the trunk, may also be accomplished if the car is being towed away (an inventory search). Warrants are not necessary for such searches.

How might a lawyer help me?
A lawyer can review your case to determine whether the search was valid. First, the officer needs a lawful reason to detain you in the first place. Second, they would need a valid reason to arrest you. Third, any search of the car would have to be limited to the passenger compartment unless they do an inventory search. Finally, if an inventory search is conducted, they have to follow certain procedures.

5. Consent search

What is a consent search?
By far, the most common type of search is when the police ask for consent from the person. A person may consent to a search of almost anything, including their person, luggage, car, or home. However, every person has a right to refuse a search of this type. The person giving consent may also limit the search in scope or duration.

How might a lawyer help me?
A lawyer can review your case to determine whether consent was given and, if so, whether it was given freely and voluntarily. A search based on consent that was coerced is unlawful. In addition, the person giving consent must have had the apparent authority over the object searched. Otherwise, the evidence may be excluded.