At the Charles Johnson Law Firm, we have extensive experience in the investigation of cases involving illegal search and seizure of property. Search and seizures can involve cases involving Drug Crimes, Federal White Collar Crimes or Child Pornography cases, as examples. Anytime local officials search your person, car, home, office or property, they must follow strict protocol to ensure compliance with your Fourth Amendment Constitutional Rights.
Has an illegal search of your home, vehicle, or other property resulted in drug charges involving possession, distribution or some other drug crime? Although the Constitution grants you the right against illegal search and seizure, it is often necessary to have a skilled lawyer on your side to advocate for and enforce your rights. Contact Houston Lawyer Charles Johnson for aggressive criminal defense representation anywhere in Texas. Attorney Johnson is available to discuss your case anytime night or day. You can reach him directly at (713) 222-7577.
Search and seizure law today is built around three key questions. First, did the police “search” or “seize” anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have — probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow — must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?
Search and Seizure: Understanding The Laws
One of the hallmarks of the US criminal justice system is our search and seizure law. The Fourth Amendment to the US Constitution guarantees the right to be free from unlawful or “unreasonable” searches and seizures by the police and other law enforcement personnel. Generally, this means that the police have to have a good reason before they may search you or your property, seize your belongings or even seize or arrest you.
The key term here is “unreasonable.” Of course, not all searches and seizures are illegal. The lynchpins to the search and seizure law are probable cause and the expectation of privacy.
In simple terms, probable cause means that there are facts or circumstances to justify a search or seizure of a place, things or a person. Generally, this means that there’s a good reason to believe that a person is or has committed crime or that evidence of a crime can be found in a particular place. Probable cause is the driving factor for any search or arrest.
With probable cause, a police officer may:
- Convince a judge or magistrate to issue a warrant that authorizes him to search a certain and particular place for certain and particular things and seize them, or to arrest a particular person, or
- Conduct a search and seize evidence of a crime, or make an arrest, without a warrant, if there are “exigent” or emergency circumstances that make getting a warrant impractical
For example, during an investigation, police officers gather evidence that a suspect is selling illegal drugs from his home. The officers may ask a judge or magistrate for a search warrant for the home (and an arrest warrant for the suspect), and if the magistrate thinks there’s enough evidence, they willl issue the warrant(s). However, if during a stakeout the officers learn that the suspect is about to destroy the drugs in his home, the officers may be justified to enter the home, search it, and seize any drugs and arrest the suspect, all without a warrant.
As a general rule, the police need to get a warrant. It’s the mechanism that makes the Fourth Amendment work, that is, it makes sure that a search and seizure is reasonable. If warrantless search and seizure is conducted, the police have to prove that a warrant was needed or that there was no time to get one.
Expectation of Privacy
Generally, unless you have a “reasonable expectation of privacy” in a certain place or thing, it may be searched and/or seized by the police without a search warrant. In other words, the Fourth Amendment doesn’t apply to any place or thing in which you don’t have a reasonable expectation of privacy. You have a reasonable expectation of privacy if:
- You actually expect privacy in the place or thing. This is called the “subjective” expectation of privacy, and
- Your expectation of privacy is one that that society as a whole would think is legitimate and reasonable. This is called the “objective” expectation of privacy
Some examples of places or things where you may have a reasonable expectation of privacy include:
- Your home, or anywhere you actually live, including a rented apartment or a hotel room
- The trunk of your car
- Luggage or other containers that aren’t transparent or see-through, even if you’re carrying it in a public place, like an airport or bus station
- Your business office
- A public telephone booth, once you’ve shut the door
On the other hand, there are many places and things in which there is no reasonable expectation of privacy, such as
- Things that are in “plain view,” that is, exposed or out in the open that anyone can see. Illegal drugs or weapons on the front seat of your car are good examples
- Portions of your business office or building that’s open to the public, such as a reception area
- Public places, likes restaurants and parks
- Your trash or garbage, once you placed it at the curb for pick-up or collection
The laws on search and seizure can be complicated, and the facts and circumstances of each particular case are very important to determining if an unlawful search and seizure has taken place. If you or your property has been searched already, you should contact Houston Criminal Lawyer Charles Johnson immediately to make sure that your rights are protected. He can be reached anytime at (713) 272-4586 to discuss your case.
Hire the Best Houston Search & Seizure Lawyer: Houston Criminal Lawyer Charles Johnson
Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person. The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.
Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.
We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.
Say NO. It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.
The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property — whether through police stops of citizens on the street, arrests, or searches of homes and businesses.
Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals’ Fourth Amendment rights only under limited circumstances, and through specific methods.
What Does the Fourth Amendment Protect?
In the criminal law realm, Fourth Amendment “search and seizure” protections extend to:
- A law enforcement officer’s physical apprehension or “seizure” of a person, by way of a stop or arrest; and
- Police searches of places and items in which an individual has a legitimate expectation of privacy — his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.
The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.
When Does the Fourth Amendment Apply?
The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:
- An individual is stopped for police questioning while walking down the street.
- An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle’s trunk.
- An individual is arrested.
- Police officers enter an individual’s house to place him or her under arrest.
- Police officers enter an individual’s apartment to search for evidence of crime.
- Police officers enter a corporation’s place of business to search for evidence of crime.
- Police officers confiscate an individual’s vehicle or personal property and place it under police control.
Potential scenarios implicating the Fourth Amendment, and law enforcement’s legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:
- A valid search warrant;
- A valid arrest warrant; or
- A belief rising to the level of “probable cause” that an individual has committed a crime.
What if My Fourth Amendment Rights Are Violated?
When law enforcement officers violate an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:
- An arrest is found to violate the Fourth Amendment because it was not supported by probable cause or a valid warrant. Any evidence obtained through that unlawful arrest, such as a confession, will be kept out of the case.
- A police search of a home is conducted in violation of the homeowner’s Fourth Amendment rights, because no search warrant was issued and no special circumstances justified the search. Any evidence obtained as a result of that search cannot be used against the homeowner in a criminal case.
Search Warrant Requirements
Anyone who watches crime dramas on television is familiar with the scene where police officers enter a home or business brandishing a search warrant. The Fourth Amendment to the United States Constitution guarantees the people’s right to be free from unreasonable searches and seizures, which often — but not always — means that government agents must have a warrant to search and seize your person and property.
Here is the full text of the Fourth Amendment:
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.
The Fourth Amendment protects the people from unreasonable searches and seizures, which means that many searches are fine as long as they meet certain requirements. Searches are generally considered reasonable when: 1) a judge issues a search warrant based on probable cause; or 2) certain situations occur that justify a search without a warrant (a search for weapons after an arrest, for example).
The Fourth Amendment’s requirements don’t apply when a person doesn’t have a “legitimate expectation of privacy” in the place or thing searched. If there isn’t an expectation of privacy, then the Fourth Amendment doesn’t come into play, and officers conducting a search don’t have to meet its requirements.
The United States Supreme Court has created a test for determining when a legitimate expectation of privacy exists. The test has two parts:
- Did the person subjectively expect the place or thing to be private? I.e., did they actually feel that the place or thing would remain private?
- Was that expectation objectively reasonable? I.e., would society as a whole agree that the place or thing should remain private?
An example might help clarify the point: most people feel that their homes are private, so there is a subjective expectation of privacy in one’s home. Most people in society would find this expectation reasonable, so a police search of one’s home must satisfy the Fourth Amendment’s reasonableness requirement.
If someone leaves evidence of a crime on their front lawn, however, it’s likely that a police seizure of that evidence would not constitute an unreasonable search since most people in a society would not expect that an object that was clearly visible to anyone passing by would remain private. Even if the owner of the home or the evidence genuinely expected that the area would remain private, that expectation would not be reasonable, and so the seizure would not have to meet the requirements of the Fourth Amendment.
Also keep in mind that the Fourth Amendment’s requirements only apply to government actors. Private individuals, including security guards, don’t fall under the Fourth Amendment’s restrictions. While a private individual may break other laws if they conduct a search of a person or their belongings, any evidence they discover in the process would still be admissible in court.
If a government actor conducts an illegal search (one that violates the Fourth Amendment), the government cannot present any evidence discovered during that search at trial. Known as the “exclusionary rule“, this rule aims to deter police officers from conducting unreasonable searches. Opponents of the exclusionary rule, however, argue that it lets guilty criminals go free on technicalities.
In addition, evidence obtained through illegal searches cannot lead police to the discovery of other evidence. This legal rule, known as the “fruit of the poisonous tree”, is also designed to prevent government actors from invading people’s privacy by conducting unreasonable searches. If police know, so the theory goes, that any evidence they obtain based on what they discover in an illegal search will be thrown out, they won’t conduct illegal searches in the first place.
Here are a few examples to illustrate the exclusionary rule and the fruit of the poisonous tree doctrine:
Officer Joe suspects that Chris is selling drugs. Without a warrant, Officer Joe walks into Chris’ house and finds drugs and a scale on the kitchen table. Officer Joe arrests Chris, but the judge throws out the evidence of the drugs and scale on the basis of the exclusionary rule.
In the example above, instead of finding drugs and a scale, Office Joe finds a map to locations throughout the city where Chris is storing his drugs for sale. Officer Joe collects the drugs and enters both them and the map as evidence. The map is thrown out because of the exclusionary rule, and, because Officer Joe would not have discovered the drugs without the map, the fruit of the poisonous tree doctrine prevents the use of the drugs as evidence.
It is important to note, however, that just because the prosecution can’t use certain evidence at trial, it doesn’t mean that a judge will dismiss a case or that a jury will acquit the defendant. Prosecutors may have enough other evidence to convict the defendant even without the results of the illegal search.
Plus, while prosecutors can’t use improperly obtained evidence to secure a conviction, that evidence may enter into other areas of the trial. For instance:
- The evidence may become a factor in civil and immigration cases
- Prosecutors can use the evidence to attack the credibility of a witness under certain circumstances
- Judges may consider the evidence when determining a sentence after a conviction
Understanding the Difference between “Search” and “Seizure”
“Searches,” in Fourth Amendment law, are police tactics that infringe a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a “search” taken place.
A few examples might clarify the standard. Eavesdropping on telephone conversations is a “search.” Overhearing a conversation on the street is not. Climbing over a backyard fence is a “search.” Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a “search.” Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a “search.” Observing someone carrying a briefcase on the street is not.
When applying the “reasonable expectation of privacy” standard, courts ask whether, at the moment the police officer observed the illegal behavior, he was in a position any member of the public might have been in. The duration and intensity of police observation does not matter. Thus, police officers can stake out a private home, taking up residence across the street and watching all comings and goings for a period of days or even weeks, and that behavior does not constitute a “search,” because at any given moment, any member of the public might have been looking. And police can follow a suspect’s movements along public streets, in shops or restaurants, and so forth; once again, such behavior is not a “search” (even though it amounts to something like stalking), because any member of the public might have seen any given transaction in public.
One other feature of the definition of “search” bears mention. Consensual transactions are not “searches,” even if consent was given under false pretenses. So if a police officer poses as a drug buyer, and a suspect lets him into the suspect’s house in order to sell him drugs, anything the officer sees and hears in the house is fair game—no Fourth Amendment “search” has taken place. The use of undercover agents is thus routinely permitted by search and seizure law, whether or not the police have good reason to suspect the person with whom the undercover agent is dealing of any crime. Also, if a police officer asks permission to look in a suspect’s car or briefcase, and the suspect says yes, once again no “search” has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.
All these rules sound complicated; in practice, they are relatively simple. In general, the police are “searching” when they are either committing some kind of trespass—grabbing a suspect’s briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.
“Seizures” are harder to define. The Supreme Court says that a suspect has been “seized” if a reasonable person in the suspect’s shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a “seizure.” After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.
Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a “seizure.” If not, it is not. Compared to the definition of “search,” which has acquired a good deal of definition over the years, the definition of “seizure” remains remarkably vague and open-ended. Conversations on the street between police officers and citizens often begin as consensual conversations; at some point the encounter often becomes a “seizure.” Neither the officer nor the suspect—nor, for that matter, courts—know precisely when that point is.
The Penalties for Illegal Searches and Seizures
To ensure that police officers respect individuals’ constitutional rights, the U.S. Supreme Court provides strict penalties. If the police perform an illegal search, the evidence they obtain as a result of this search will not be allowed in a courtroom.
This means that if police search you without probable cause, even if they find drugs, they will not be allowed to present this evidence to a jury. Illegal search and seizure is one of the strongest defenses available for any criminal matter.
If you have been accused of any crime, contact the firm to discuss your concerns with an experienced criminal defense attorney. Houston Attorney Charles Johnson can help you understand your rights and remedies following an illegal search or seizure.
Houston Search and Seizure Lawyer Charles Johnson will fight aggressively on your behalf to get the charges against you dismissed in cases of police misconduct, police brutality or violations of your civil rights. Those actions include:
- Illegal search and seizure
- Failure to read Miranda rights
- Arresting you without a valid search warrant
- Refusing you access to an attorney
- Racial profiling
- Making false statements to obtain a warrant
- Making false statements in court
There are many other examples of police misconduct that could invalidate the charges against you. If you have been subjected to a search or seizure action, contact Attorney Johnson immediately to inquire about possible violations of your legal rights. Houston Lawyer Johnson has extensive experience challenging evidence that was gathered during an illegal search. Once the evidence against you is suppressed, there is no basis for the charges against you, which may lead to a dismissal of all charges.
Tips for avoiding all types of searches:
- Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.
- Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.
- Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.
- Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.
- Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.
- Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.
- Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.
- Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.
- Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.
- If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.
The most important thing to remember when asked for consent to search is to say “NO”.
Contact the Best Search and Seizure Attorney in Texas: The Charles Johnson Law Firm
If you have been arrested, detained, stopped, or investigated in Houston or anywhere in the state of Texas, you may have legal defenses available to the contest the charge or mitigate possible penalties. Houston Criminal Lawyer Charles Johnson has extensive experience defending cases involving Fourth Amendment violations, motions to suppress evidence, and illegal police searches.
The Charles Johnson Law Firm is committed to providing the highest-quality defense. As a criminal defense law firm, they are dedicated to protecting their clients’ rights throughout the legal process. Attorney Johnson offers a free initial consultation that can be done over the phone. Contact him directly anytime night or day at (713) 222-75778 or toll-free at (877) 308-0100.