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Can I Sue The Police For Illegal Search And Seizure

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To find out if you can make a claim for unlawful entry and searches by police of your property, get in touch with our actions against police solicitors, and well discuss your case with you and help you with your complaint.

> United States Supreme Court Cases

Lange v. California, 594 U.S. ___ US Supreme Court held that the flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.

Torres v. Madrid, 592 U.S. ___ US Supreme Court held that the use of physical force with the intent to restrain a person, even if that fails to restrain the person, is considered a seizure. This expands the situations in which a plaintiff can sue for excessive force under the Fourth Amendment.

Collins v. Virginia, 592 U.S. ___ US Supreme Court held that a warrant is needed to search a car parked in a driveway at a private home. The “automobile exception” does not give an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Miranda v. Arizona, 384 US 436 . Required warnings“In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed.” See also, Miranda v. Arizona Explanation from National Paralegal College.

Illegal Search And Seizure Faqs

By FindLaw Staff | Reviewed by Evan Fisher, Esq. | Last updated November 30, 2021

When law enforcement officers search the private property of a suspected criminal, there are rules that apply to protect that suspect’s rights to be free from unreasonable search and seizure. If the search was illegal, any evidence gained during the search could be deemed inadmissible. These principles are derived directly from the Constitution, specifically the Fourth Amendment, as well as court opinions.

Below are some of the most common questions regarding police searches of a home, a car, or a person.

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Were Your Fourth Amendment Rights Violated We Can Help

The police are given great power they can stop citizens, frisk them, detain them, question them and arrest them. However, these powers arent limitless even though some police officers behave as if they are.

At Erickson & Oppenheimer, Ltd., located in Chicago, we keep police officers in check. If your constitutional right against illegal searches and seizures was violated, we will file a civil rights suit, hold the police accountable and obtain compensation for any violations.

When Do Police Not Need A Warrant

Free Report: Search and Seizure Basics

Contrary to popular belief, police dont always need to have a search warrant. Several exceptions exist to the Fourth Amendments warrant requirement. Courts carefully scrutinize warrantless searches and seizures to make sure police dont abuse these exceptions, but they generally include:

Emergency or exigent circumstances. These can include emergencies or ongoing urgent situations. But they may also include scenarios in which there is a reasonable fear that evidence will be lost or destroyed, and it would take too long to get a warrant.

Searches and seizures incident to an arrest. If you are placed under arrest, police can generally search your person to ensure you are not hiding weapons or contraband. However, the arrest itself has to be valid. Police cannot wrongfully arrest someone just to use this exception.

Searches of vehicles. There is less expectation of privacy in a vehicle versus a home. While police dont usually have to have a warrant to search your automobile, they must have probable cause to believe a driver or passenger is committing a crime or has committed a crime, or that evidence of criminal activity will be found in the vehicle.

Plain view. If evidence of criminal activity, such as drugs, is in plain view, police can seize it. But the police must have a lawful reason for being where they are when they see the evidence.

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When Can The Police Legally Stop And Search Me

The Fourth Amendment applies to actions by both federal law enforcement agencies and to searches by state and local police.

This protection against unreasonable search and seizures means the police and other law enforcement personnel may not search you or your property unless:

  • They have obtained a valid search warrant from a judge, OR
  • The search falls within one of the limited exceptions to the warrant requirement recognized by federal and Colorado courts.

Work With A Civil Rights Attorney For Your Unlawful Search Lawsuit

If you believe that you have been a victim of unlawful search and seizure at the hands of a police officer, you have options. The attorneys at The Brown Firm would be happy to speak with you and help you to understand what next steps may be possible in your case, including the potential for a lawsuit. Reach out to schedule a consultation with a civil rights attorney today so that you can seek compensation and achieve the justice that you deserve.

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What If I Refuse To Allow A Search

The officer will either continue to search without your consent, which may or may not be legal, or the officer will give up the search for the time being. The officer may return later with a warrant.

Regardless of how an officer reacts to your refusal to allow a search, providing any physical resistance to a search will likely result in temporary detention or even an arrest.

Search And Seizure Parameters

Gowanda police

There are specific parameters that must be followed when a search and seizure is conducted. The specific protection provided varies based on the location of the search and seizure.

For instance, a persons home can be searched and evidence seized if:

  • Law enforcement has secured a warrant or if consent is given for the search
  • There is probable cause for the search and exigent circumstances
  • There is an arrest and
  • Evidence is in plain view.

A persons vehicle has less privacy than a home. A persons vehicle can be searched without a warrant pursuant to a traffic stop if there is probable cause to believe the vehicle contains evidence of a crime.

During a legal traffic stop, law enforcement has the right to pat down the driver or any passengers in the vehicle, even if there is no suspicion of illegal activity beyond the traffic violation. Law enforcement is also permitted to use a narcotics detection dog regardless of whether there is suspicion of drugs present.

It is also legal to briefly stop and question someone when law enforcement reasonably believes that criminal activity might be afoot. Whether or not a further search would be legal depends on the specific circumstances that develop during that questioning.

Additionally, the vehicle can be searched that is incident to a lawful arrest, and often times while an officer will inventory the vehicle for personal contents prior to a tow, evidence of a crime can be recovered.

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Will Be Charges Be Dismissed Because Of An Illegal Search

Not necessarily, but it is possible for evidence that was obtained illegally will be suppressed at trial, which could lead to dismissal of charges.

On the other hand, an illegal search is not a grant of immunity from prosecution. Police might have enough evidence to support a conviction. Or they may find some exception to the exclusionary rule that would allow them to present the evidence uncovered during an illegal search.

Possible Outcomes In Your Case

Those who are successful in proving that an officer unlawfully searched them may be awarded compensation. Settlements can range significantly in amount, from a few thousand dollars into the six figure range.

Additionally, repeated offenses by the same department can produce department-wide change that may help to reduce the further occurrence of unlawful searches and seizures. However, proving that an officer did not possess reasonable suspicion, especially when they make claims about exigent circumstances, can pose a particular challenge.

This is why you should seek the services of an attorney focused on civil rights as soon as you are able after the incident. Be sure to write down as much as you remember, but do not embellish your testimony is your most valuable asset in a case of unlawful search and seizure, and if it is not honest, your entire case may be called into question.

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How An Indianapolis Drug Defense Lawyer Can Help

If youve been charged with a crime, the prosecutors will need solid evidence against you in order to convince a jury that you are guilty. By reviewing how each piece of evidence was obtained, a skilled Indiana drug defense attorney may discover that some evidence was obtained in a way that violated your Fourth Amendment rights. The attorney can file a motion to suppress the evidence, which if successful will bar the prosecution from using that evidence against you at trial.

For this reason, every criminal defense attorney must also be knowledgeable in constitutional law. At Hessler Law, we have often been able to successfully fight our clients criminal charges when the evidence against them resulted from illegal searches or seizures. If youre facing criminal charges and want to speak with an Indianapolis criminal defense lawyer, call attorney Sean Hessler with Hessler Law today for a free and confidential phone consultation of your case at .

What Is A Custodial Setting

Can I sue for illegal search and seizure?

Generally, students are in a custodial setting when they are with the police and are not free to leave. If the police question the student when they are not free to leave, it is a custodial interrogation. There are two factors to look at:

  • What were the circumstances leading up to you being in the setting, and

  • Would a reasonable person have felt they could stop the police officers questions and leave?

The student may not be told they are under arrest but still be in a custodial setting. If the interrogation or questioning is custodial , the police must give the student Miranda warnings BEFORE asking questions. Miranda warnings are:

  • The right to remain silent

  • To be warned that anything you say can and will be used against you

  • The right to an attorney

  • If you cannot afford an attorney, one will be provided to you

  • Do you understand your rights

  • Will you talk to me

If the student understands the student Miranda rights and still agrees to talk to the police, the student has waived those rights. That means what the student says to the police can be used against them.

Also, under Maine law, if the student is in a custodial setting, before the police can question them about crimes they think the student committed, their parent or legal guardian must be contacted. The parent must either be with you for the questioning or agree the police can question you without them being there.

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Tennessee Defense Attorneys For Drug Crimes

In some cases, an experienced attorney can getdrug charges reduced or dismissed due to violation of your Fourth Amendment rights by police. The Fourth Amendment to the U.S. Constitution protects you from unreasonablesearches and seizures. If your constitutional rights are violated, evidence obtained in an illegal search may be inadmissible. The prosecutions entire case may be crippled.

AtMay McKinney, we carefully analyze our clients cases to identify possible Fourth Amendment and other constitutional rights violations. If drug evidence was obtained illegally, we will fight to have it suppressed so that it cannot be used against our client in court. Even in seemingly open and shut drug cases, our Nashville drug illegal search and seizure attorneys know what to look for and how to effectively defend our clients interests.

What Constitutes A Fourth Amendment Seizure

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. An individual is seized when . United States v Mendenhall, 446 US 544, 546 . If, however, the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that persons liberty or privacy as would under the Constitution require some particularized and objective justification. Id. at 547.

It should be noted that seizures are not specifically limited to the detainment of an individual. Any mechanism deployed by law enforcement officials to impede an individuals movement may constitute a seizure for Fourth Amendment purposes. Brower v Inyo County, 489 US 593 where individual driving a stolen car and being pursued by police was killed after hitting a police barricade designed to stop him, the Court found that the suspect had been seized because his death had occurred through means intentionally applied. See alsoTennessee v Garner, 471 US 1 , finding that a suspected thief who was shot and killed while being pursued by law enforcement had been seized for Fourth Amendment purposes.

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What Happens If The Police Do Not Read You Your Miranda Rights

Police are required under the 5th Amendment to read you Miranda warnings. These warnings were created so as to protect an individual from making any incriminating statements. So when are they read? Police are required to read these warning anytime an individual is placed in a custodial interrogation. Custodial refers to whether or not the individual is free to leave. The individual need not be physically placed in handcuffs, though. The term custodial can occur in situations where the individual is simply standing on the side of the road being questioned by police. Interrogation means that the police are asking questions designed to illicit an incriminating response. In these situations, the police must read an individual Miranda warnings. Any statements given without these necessary warnings are inadmissible in a court of law and cannot be used in a prosecution.

Do You Know What Constitutes Unlawful Searches And Seizures

Should I consent to let police search my car? (advice from a former cop)

It is important to speak with an attorney who has experience with police brutality and excessive force cases about the details of your case. Our attorneys have pursued highly consequential, high-profile cases against law enforcement authorities in state and federal courts throughout the Chicago area, and we can help you decisively navigate the legal system.

We analyze your case with objective criminal defense, law enforcement and constitutional law experts. Our lawyers independently investigate the circumstances of your case, build a strong case for maximum compensation and handle all legal aspects of your claim.

Whether your phone was tapped, your home, business or car searched without a warrant, you were strip searched unnecessarily, or your mobile phone was searched without a warrant, we can protect your rights and sue for damages on your behalf.

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Can The School Search My Pockets Backpack Or Other Personal Items

When it comes to your body and property, there are rules that must be followed. Which rules apply depends on who is doing the search.

School staff may search a student if there are reasonable grounds that the search will turn up evidence that the student broke a school rule. This means that staff have more than a hunch that the student did something wrong before the search can happen. They must have specific reason to believe you broke a school rule. The search must be:

  • Justified when it starts, and

  • Reasonable in how it is done

There are a couple of factors to be looked at to establish a reasonable search.

  • The childs age,

  • The gender of the child and the gender of the staff searching the child,

  • The rule or law that is believed to be broken.

For example, if a student is accused of having aspirin, which violates the school drug policy, it is reasonable for school staff to have the student empty pockets and look in a backpack. But, if nothing is found, it is not ok to ask you to pull out your underwear band to look for aspirin there.

Illegal Search And Seizure Defense In Drug Charges In Tn

In their zeal to make drug arrests, the police may step over the line and search people they had no right to search and seize evidence they had no right to take.

Drug arrests often arise as a result of traffic stops. However, police cannot stop your vehicle without reasonable suspicion that you have committed a crime. If the police did not have a valid reason for pulling you over, all evidence gathered after the stop may be suppressed.

After the stop, police cannot search your vehicle or your person unless:

  • They have probable cause that you committed a crime. An example of probable cause would be drug paraphernalia in a visible area of the car such as the dashboard. Whether the police had probable cause to search your person or vehicle is often a disputed issue.
  • You gave police permission to search your vehicle or person. Even if you gave permission, the search may be illegal if the police intimidated you.
  • The police obtained a warrant. The warrant must be properly drafted and executed.

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