In our last post, we began speaking about the process by which police searches are evaluated for legality. As we noted, the issue of search legality is an important one in various criminal cases, particularly those involving drug offenses. The first question is always whether a search was conducted. The key to that issue is whether the defendant had a reasonable expectation of privacy. Because of this requirement, police can sometimes legally gain access to very sensitive information without even conducting a “search.”
If police do venture into the realm of a search, the general rule is that they must be supported by a proper warrant. The rules on this issue can be simplified by saying that a warrant must be supported by probable cause and that police are limited in their search to the specific terms of the warrant. Failure on either point can taint evidence gained in a search.
There are certain exceptions to the warrant rule. These include situations where police see incriminating evidence in plain sight; situations where police obtain valid consent to conduct a search; and situations where police run into emergency circumstances that involve the potential destruction of evidence or the escape of a suspect. There are other possible exceptions. The key with these exceptions is that they must be legitimate. Officers cannot retrospectively justify a search through a convenient exception. It must be genuine.
This is obviously a very brief treatment of the subject of search and seizure. For purposes of criminal defense, it is enough for readers to be aware of the possibility of police misconduct in obtaining a warrant and conducting a search. When this occurs, criminal defendants may be able to exclude tainted evidence from trial and strengthen their defense case.
When working on a building a solid defense case, defendants should be sure to explore any potential search and seizure issues with their attorney.
Source: Chicago Tribune, “Cops: Chicago drug bust yields nearly 350 pounds of marijuana,” Adam Sege, January 26, 2014.
