October 21, 2017

What is Unlawful Search and Seizure?

The fourth amendment to the Bill of Rights in the United States requires a standard for all search and seizures that take place within the country’s boundaries. This particular amendment was created in order to stop random search and seizure methods by which there were no probable reasons to search the property. The fourth amendment overrides the writ of assistance which was common during the Revolutionary War.

The amendment states, “The right of the people to be secure in their persons, houses, papers, 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.” It is one of the most clear cut amendments on the books, yet cases of illegal search and seizure occur on a daily basis.

The fourth amendment insures a certain level of protection against unwarranted arrests. For instance, if an officer obtains a warrant, it must state the exact location that he or she can search. The warrant may be for the car, the home, or business place. If the officer searches in areas that he or she is does not have legal access to, any evidence gathered was done so under an illegal search and seizure and is not admissible in court. The warrant must also state exactly what they are searching for. In other words, if you have something illegal in your home and do not realize it is illegal, the police can only arrest you for it if it is on the warrant list.

Mapp Vs. Ohio is a classic example of illegal search and seizure disasters. The events occurred in 1957 when police were looking for a bomber. The police asked to search Mapp’s home without a warrant after receiving a tip that the bomber was at her home. She refused to let them in on advice from her attorney. The police later informed her they had a warrant but would not allow her to see it. That is when they burst her doors open, wrestled her down and handcuffed her to the bed while they searched the home. The police found pornographic material in an apartment that Mapp had leased to a previous tenant. Possession of these materials was a felony offense at the time. Mapp insisted the materials were not hers, however, police arrested her and she went to trial for the offense in 1961.

The fourth amendment protects citizens from illegal search and seizures. It is plain to see from the Mapp case that even if you do not realize something illegal is on your property, you can be arrested and tried for it. When law enforcement officials have to prove probable cause and must produce a warrant, far fewer misguided arrests are made. Citizens should never take their right to see a search warrant for granted under any circumstances. It is better to be safe than take a chance that you will unwittingly become the suspect.

Article provided by the Law Offices of David Michael Cantor, a criminal defense law firm based in Phoenix, AZ. For more information about Criminal Defense in Arizona, please see their website.

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