by: Stephen Sebald
If you believe you’ve been the victim of an unlawful search, there are several steps that you can take to determine whether there was probable cause for the search in question, and if your rights have been violated. If you’re seeking the expert counsel of an attorney well versed in search warrant laws, one of us at Sebald, Hackwelder, & Knox can provide you with the very best. Here’s some background information into search warrants and probable cause.
Obtaining a Warrant: Search warrants are provided to police officers by judges or magistrates. They review the data pertaining to a crime and determine if there is probable cause to conduct the search. The information regarding the search can either be indicating that there is a current reason for the search, or in an ‘anticipatory’ capacity, providing the reasonable belief that there will soon be a legal reason to conduct the search.
One example of an anticipatory search warrant is when it has to do with the drug trade, such as if an officer has been trailing a seller or buyer, and has substantial information to conclude that there will soon be drugs present at a particular location, even if they aren’t at the time of search warrant filing.
Search warrants are generally filed without the suspect present, so he or she does not have the opportunity to defend themselves against the alleged crime, or prove that there was not actually probable cause, and the search was an invasion of privacy. However, the suspect can later challenge whether the warrant should have been issued at all and have it thrown out of court later down the line.
Probable Cause: There are several requirements that must be fulfilled before judges will concede to a situation of probable cause, which is vital to conducting a search. Unfortunately, there is no clear definition of the term in the Fourth Amendment, but the past 200 years of legal precedent have established some clear requirements for probable cause to be held.
The information provided needs to come from a reputable source to the case, including a proven reliable police informant, someone also turning themselves in along with the suspect, a direct witness or victim of the crime, or another member of the law enforcement. While probable cause doesn’t necessarily need to be proof beyond a reasonable doubt, it does need to be solid and seriously plausible accusation—not just a suspicion.
Warrant Requirement Exceptions: Perhaps surprisingly, there are many legal searches conducted every day without a search warrant issued on the case. Some ways that a legal non-warranted search could be held includes if the suspect themselves consents to being searched, either on their person or property, or if the illegal items are in clearly in plain view, or if the search happens during an unrelated arrest for criminal activity. ‘Stop and Frisk’, in which officers can pat down a person suspected of criminal activity, is also completely legal, although increasingly controversial. There are also searches permitted in cases of emergency, when it would be detrimental to the case or to victims to stop an investigation without first obtaining a warrant.
The best thing you can do is to educate yourself about the law and what is permissible and what’s not. In the event that find yourself subjected to a search with a warrant, it’s important to cooperate and not obstruct law enforcement officials. But if you feel that your rights have been violated by a search, call us today at Sebald, Hackwelder, & Knox to discuss your options: (814) 833-1987.