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If items were recovered or observations are made as a result of an unlawful search and seizure, them, and their fruits would be prohibited at trial.     

In order to stop you, whether it be on the street, or in a vehicle, law enforcement must have reasonable suspicion or probable cause.   The following are highlights of the law of Unlawful Search and Seizure:

• Mere Encounters
• Consent to Search and Abandonment
• Investigatory Detention
• The Plain View Doctrine
• Probable Cause and Arrest
• Miranda Warnings
• Probation/Parole Search
• Anonymous Tip
• Search Warrants
• Exigent Circumstances
• Mere Encounters

Often, the government will argue that an encounter with the police is a mere encounter.  These encounters fall short of a seizure and require no reasonable suspicion or probable cause.   One way to combat this is to argue that a reasonable person would not feel free to leave.     If an officer approaches you on the street, and begins to ask you questions, you may be free to leave if it is a mere encounter.      If, on the other hand,  during a mere encounter one gives law enforcement probable cause or reasonable suspicion by their words or actions,  the encounter may turn to a detention. 

Consent to Search and Abandonment

Police may obviously search areas that they have been given consent to search.  Consent to search or abandonment following illegal stops may be invalidated.  The police are allowed to lie to you and deceive you in order to obtain consent or even a confession.  However, consent to search or confessions made under duress may be invalidated as well.  Often, a third party may give consent to search.  Even if they don’t have authority to do so, the search may be upheld.  In order for a third-party consent to be invalidated, it must be apparent that the individual giving consent did not have the authority to do so.

Investigatory Detention

While not under arrest, police may detain one briefly if they have reasonable suspicion that a crime has occurred or that one is armed and dangerous.  One isn’t free to leave during an investigatory detention, but a full search is impermissible.    Police may frisk, or pat down the outside of your clothing for weapons or contraband, otherwise known as a Terry stop or frisk.   The plain touch doctrine requires that law enforcement, without manipulating an item with their fingers, detect what is immediately apparent to be contraband during the pat down.  Pill bottles or a plastic baggy are examples of items that aren’t immediately apparent to be contraband.

The Plain View Doctrine

The police do have a right to seize items in plain view.  For an item to be in plain view, it must be viewed from a lawful vantage point and it must be immediately apparent to be contraband.   Sometimes law enforcement may overreach and view items from an unlawful vantage point, such as entering a vehicle.  Additionally, if an item isn’t immediately apparent to be contraband, such as a pill bottle or plastic baggy,  it may not be in plain view.   

Probable Cause and Arrest

In order to be arrested by the police, they need probable cause.  That is, that a crime has been committed and more likely than not you committed it. These searches are obviously longer in duration that an investigatory detention.   It is here where an officer may search your person and surrounding area (with limitations) incident to arrest.

Miranda Warnings

Often, it is confused by the general public that Miranda warnings must be read after an arrest.  That is not the case.  Miranda applies during a custodial interrogation.  The remedy to lack of Miranda warnings would be the suppression of the statement, and any fruits obtained thereof. 

Probation/Parole Search

When one is on probation or parole, their privacy rights are more limited.   In fact, probation and parole agents need only reasonable suspicion to conduct a search.   If, during the search, evidence is uncovered tending to prove the guilt of a third-party,  that evidence may be admissible.

Anonymous Tip

Often, individuals are stopped based on “anonymous tips”.  If the police receive such a tip, including the name, description and location of a person, a search may be invalidated if the police do not observe any corroborating behavior.   In other words,   if the police get a call for a man “with a gun”, without any further corroboration or other factors,   they cannot just search or stop you if you fit the description.

Search Warrants

Generally, the police need a warrant to search one’s property, when there is no other exception such as consent or exigent circumstances.   In order to obtain a warrant, law enforcement must submit an affidavit of probable cause to a magistrate. The affidavit and warrant must contain what is being searched for and specific areas to be searched.  The crime must be ripe as well.   There are several other ways to test the “four corners” of a search warrant.   Additionally, the execution of the warrant has its regulations such as the “knock and announce” requirement and timeliness requirements. 

Exigent Circumstances

Another exception to the warrant requirement is exigent circumstances.  Some forms of exigent circumstances are in cases of emergency, when it is impractical to secure a warrant, or apprehension of a fleeing felon.   The police cannot create the exigency.   Additionally, inconvenience and delay are not sufficient excuses for exigency.