What is an Illegal Search and Seizure?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 13 May 2020
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An illegal search and seizure is a search and seizure which falls outside the boundaries of the law. Any evidence obtained in such an action can be excluded from a trial because it was obtained by illegal means. Furthermore, if materials uncovered in such a search and seizure are used to find additional evidence, this evidence may also be excluded under the legal doctrine known as “fruit of the poisonous tree,” unless law enforcement can demonstrate that this evidence could have been obtained by other means.

This term often comes up in the context of law in the United States, although other nations also have search and seizure laws. Under the law, citizens are entitled to certain privacy rights which can come into conflict with police searches and seizure of evidence. The law provides strict rules for situations in which searches need to be conducted. If the rules are not followed, it can result in an illegal search and seizure.

For example, if a police officer searches a home without a warrant in the United States and takes some mail as evidence, this is an illegal search and seizure. Likewise, if a police officer has a warrant to search a house but also searches a garage and removes evidence from the garage, this would be illegal because the officer exceeded the scope of the warrant. Conversely, if someone gave free and willing consent to a search or a police officer identified something in plain sight, such as an illegal object sitting in a window, this would be considered legal.

Police officers are not necessarily required to have a warrant for all searches, which is something important to be aware of. There are situations in which a police officer can act on probable cause that a crime has been committed, including suspicions that there is a clear and present public danger. For example, if someone is driving highly erratically and swinging a bottle of alcohol and a police officer pulls this person over, the car can be searched.

Law enforcement are not required to advise people of their rights when conducting searches. However, they are generally careful to avoid violating rights because if personnel conduct an illegal search and seizure, the resulting evidence cannot be used in court. Police officers and criminal investigators do not want to jeopardize a case by failing to follow the law during a search.

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Post 6

I was involved in a traffic stop where I was the passenger and ID's where checked and cleared and because the officer claims they smelled a stronger odor of perfume assumed was being used to mask a smell of weed. The officer asked could he search my purse and I refused. He called a female to search my person. Is this search legal?

Post 3

@browncoat - Can't there be some kind of compromise though? I don't think the police should be allowed into random homes at a whim either, but there have been times when they knew that a person was guilty, but had their hands tied because they couldn't perform a legal search and seizure and have the evidence count in court.

The theory goes that if someone is guilty there should be a way of using the law to convict them, but it's not that easy.

Heck, even Al Capone had to be convicted on tax fraud in the end because there was nothing else they could pin on him, in spite knowing he was a bad guy.

Couldn't they make the evidence

admissible but just punish the people who obtained it? That would make it less likely the police would burst into random houses on a whim, and still enable them to obtain it and use it when they really need it.

I'm not an expert though. I'm sure there are angles to this that I haven't even considered.

Post 2

@bythewell - The problem is that it's a slippery slope. If you start allowing warrantless search and seizures, or at least ignoring the legality of it when it comes to the trial, pretty soon the police will ignore it altogether. Why should they stop and get a warrant if they don't need one in the end? Why should they wait for proper indication that the person is likely guilty, for that matter?

Before this became a law, police could barge in to any house they liked, shut down any business they liked, on any pretext, because they thought maybe that person might be guilty. This fostered a lot of corruption.

What we've got now isn't perfect, but it at least protects the rights of humans to privacy and the safety of their own homes. I agree that criminals have forfeited that safety, but everyone should be considered innocent until proven guilty, in my mind.

Post 1

I've heard that a huge number of cases have been thrown out of court, even with overwhelming evidence of the person's guilt, simply because the evidence was obtained by an illegal search and seizure.

This rule applies even if you aren't a police officer, so it makes no difference if you decide to take the law into your own hands and look in a criminal's house. No matter what you find, unless you leave it there and go to the police for them to get search warrants, it can be made inadmissible in a court.

I think it's a real shame and I wish there was some kind of addition to the law that means that if the evidence is

overwhelming, even if it was unlawfully obtained, that a judge can take it into account.

I mean, if the evidence is there, then the criminal is guilty and should be punished for it. Or at least prevented from committing crimes again.

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