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When is a police search potentially illegal?

On Behalf of | Jul 13, 2023 | Criminal Law |

Police officers are often eager to search wherever they can in pursuit of evidence that a crime has occurred. What officers find can give them reason to arrest someone and can also lead to a prosecutor charging that individual with a criminal offense.

Physical evidence is often important in the prosecution of specific types of crimes, including interpersonal violence and drug offenses. When the state has evidence that seems to connect someone to a criminal act or a crime scene, keeping that evidence out of the trial could help someone avoid a criminal conviction. To exclude evidence from court proceedings, a defense attorney usually needs to establish that the police conducted an illegal search. When is a police search illegal?

When officers don’t have proper justification

There are very specific rules about when police can conduct searches. The simplest way for them to ensure a search is legal is to get permission from an individual. Officers will ask if they can search, often very casually, and then will proceed to aggressively look for evidence, possibly by detaining someone at the side of the road or refusing to leave their home after finding something suspicious.

When an officer does not have permission from the person involved, then they typically need probable cause and/or a warrant, depending on the circumstances in question. If an officer has a reasonably explainable suspicion that someone may have conducted a criminal act or there is a crime in progress, they can search a vehicle or someone’s property without their consent. When it comes to searching a person, they typically need to believe there’s a weapon present to justify padding someone down if they do not have sufficient probable cause to arrest them.

If the situation does not fall into one of these legal justifications and an officer has conducted a search without permission, probable cause or a warrant, then a defense attorney might be able to prevent the prosecutor from using the evidence that they found in a criminal trial.