Search and Seizure

Do the police have to advise you of your rights?

Police need not advise you of your rights and they are not responsible for advising you of your rights to refuse an illegal search. They are not required to tell you if and when they can make a permissible search. Police need not tell you that you can withhold permission for them to enter your home, nor that police have a right to seize anything in plain view.


That should be the words we all use when the police ask if they can search you, your car or your home. Consent from you, in most cases, makes the search legal and everything they discover admissible against you in court.

Once you are placed under arrest and handcuffed, police may search your vehicle without a search warrant only if you are within reach of the vehicle, or if the police reasonably believe that evidence can be found in the vehicle that will prove the offense for which you were placed under arrest. The purpose of a search is to uncover and expose evidence that can then be seized by the police. Every citizen of the United States has a right under the Constitution to a reasonable expectation to privacy. However, those rights are limited. Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.

A search in and of itself, violates a person’s reasonable expectation of privacy. Permissible searches are often called legal searches, while impermissible searches are often called illegal searches or prohibited searches. If the violation of a person’s expectation to privacy is reasonable, then the search is permissible. A reasonable search can occur with explicit consent or implicit consent. If a person is asked if they may be searched and that person then responds affirmatively, consent has been given to the search. By giving consent, the searched person no longer has a reasonable expectation to any privacy. If contraband, paraphernalia, a weapon, or some other piece of evidence or if criminal activity is “in plain view”, an exception to consent arises under the law. That type of voluntary exposure allows the police to view the article without a search. Since a search is not needed to view something “in plain view”, then there is no violation of a person’s reasonable expectation to privacy. To put it another way, the law assumes that if the person intended that which was “in plain view” to be kept private, then he or she would not have placed it in a position where it could be easily viewed by anyone.

A police stop is a seizure under the law. If the seizure is reasonable, then it is permissible, otherwise it is a violation of a person’s Fourteenth Amendment rights (also commonly termed an illegal search and seizure). If a police officer observes criminal activity, or activity which would lead a reasonable person to conclude that it was of a criminal nature, or if an informant provides sound and verified information to the police officer about a criminal activity, then a subsequent seizure is reasonable and permissible. If at the time of a stop, a police officer sees or has a reasonable belief that the suspect is armed, the officer may “pat down” the suspect and seize any weapons that could cause harm to the officer or another person during an arrest.

Can they search my home?

In almost all instances, a search warrant is required for the police to enter a private dwelling. In most other instances when a search warrant is not required, the officer must have probable cause. However, there are exceptions to the rule. If an officer has an arrest warrant and in the process of executing the warrant in the suspect’s yard the suspect gets away and runs into his home, the police have a right to enter the home in “hot pursuit” to make the arrest. If an officer has probable cause (more than a reasonable belief that a crime has been committed), and he cannot take the time to obtain a warrant without losing evidence or the suspect, then he may enter and search and seize without a warrant. An officer may also search a home if he has consent to do so, however, whether that consent allows permissible search of another dwelling member’s belongs is quite another story. If the person who gives consent to the search has authority to give the consent, then the search may be permissible so long as it does not violate the rights of another person. The mere sharing of a home (roommates) does not give one roommate authority to consent to a search of the other roommate if there existed a reasonable expectation to privacy. The right to a reasonable expectation to privacy is a personal right to privacy of the person’s physical body and his immediate surroundings. A search includes a person’s clothing, body, and immediate surroundings or those surroundings within his reach. For example, a legal search of a person sitting in a recliner would include the immediate area surrounding the recliner as well as the person’s body.

What if the search was not legal?

If a search or a search and seizure was impermissible, under the exclusionary rule, the evidence gathered from that seizure is inadmissible in the defendant’s criminal trial. As you might expect, there are exceptions to that rule, too. If the search was to protect the public, if one or more legal searches and one or more illegal searches are conducted, or if the search revealed evidence that would have been otherwise known or produced by some other means regardless of the search, then the search – even though illegal – and the evidence gathered can be admitted into evidence at trial. The exclusionary rule prohibits evidence obtained in an illegal manner from being used against a person during a criminal trial. I cannot cover all of the exceptions to the rules of evidence for criminal prosecution. The exclusionary rule has many exceptions to determine which is legal and illegal evidence. As well, it is only one legal doctrine used to analyze evidence in a criminal trial, and each procedure (search and seizure) must be analyzed separately.

As you can see this is an area that is full of issues that can benefit you if you are arrested and the police seize evidence to be used against you as a result of a search and seizure. The better lawyers study these issues and the cases that come out on a weekly basis to ensure that your rights are protected.

If the evidence is thrown out your case often is thrown out with it.

Experienced attorneys look at the evidence and file motions to suppress (throw out) the evidence if it was a result of an unlawful search and seizure. In short your entire case can depend on a good lawyer looking at the facts and applying the law.

If you are arrested…

Make sure that you hire an experienced defense attorney that specializes in this area. The law firm of Sullivan and Sweeney has extensive experience in this area and we can assist you in evaluating your case and providing the best defense for you. Research any attorney you are entrusting your future to and be sure to look at the experience and background of Attorneys Richard Sweeney and Sabrina Bonanno. Call us at (617) 300-0212 for immediate help or send an email to