SEARCH AND SEIZURE LAW

Criminal Defense Attorney Mike Brewer has extensive experience dealing with constitutional law as it relates to the 4th amendment (unlawful search and seizure law) of the constitution. Search and seaizure law is a cornerstone of criminal procedure law. I have outlined some of the basic principals below for your edification. If you have a search and seizure issue you should contact a licensed attorney for more information.

The Bill of Rights of the Constitution as incorporated under the 14th amendment governs search and seizure law. The 4th Amendment of the Constitution states as follows:

"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 gives rise to several legal issues with regards to the rights of the the individual from unreasonable search and seizure by the government. Accordingly, warrantless searches in one’s home are per se invalid. This means the evidence obtained unlawfull by the government can not be used against you unless an exception such as inevitable discovery applies. The law infers that a person has a reasonable expectation of privacy in their home. This includes any place you may be spending the night.

In order for there to be a valid warrant issued, the fourth amendment must be satisfied and several questions must be asked and answered before a warrant can be issued.

1. Was there probable cause supported by an oath or affirmation? 2. Was there a neutral and detached magistrate? 3. Was the warrant properly executed and describing the place to be searched and the persons or things to seized?

If one of these elements is lacking then the warrant is per se invalid as a matter of constitutional law. The reason being is that the founders of our country thought it important to protect the citizens from the tyranny of the government.

Although the warrant requirement is strong, there are several exceptions to the warrant requirement and the courts trends have been consistently to carve out additional exceptions to the requirements applicable under the Fourth Amendment "Fruit of the Poisonous Tree Doctrine". The courts leaning have been flowing more and more to the right in recent years. there by carving away at the generla rule exception laid down by the founders of the country.

The most notable exception to the warrant requirement is the good faith exception. This is a big exception. Basically if the government made a mistake but acted in good faith the warrantless search is valid.

Consent is also an exception to the warrant requirement:

1. The Consent to search must be voluntary and intelligent

2. The Person granting the consent must have authority or reasonably appear to have authority to grant consent for the search.

3. The search must be within the scope of the consent.

The Search incident to a lawful arrest exception to the warrant requirement states the following:

1. The person must be arrested and the arrest must be a lawful arrest

2. The search must be contemporaneous (at the same time) with the arrest

3. The things seized must be on the person or within their wingspan

The Plain View exception to the 4th amendment warrant requirement says that the police can use discoverable evidence if it was in the plain view of the police and follows the guidelines outlined below:

1. The police must be lawfully on the premises with a lawful vantage point

2. The items to be seized must be in plain view.

The Automobile Exception to the warrant requirement is another big exception to the warrant requirement.This is due to the inherant mobilit of the automobile as the guidleines below will outline.

1. Probable cause

2. Exigency of the automobiles mobility causes

3. Reduced expectation of privacy

Hot Pursuit can give rise to an exception to the warrant requirement.

Stop and Frisk: (Terry Stop) - Terry v. Ohio, 392 U. S. 1 (1968). Reduced expectation of privacy – Reasonable suspicion of criminal activity afoot is the requirement (probable cause is not required). The scope is that of a frisk or pat down.

For more information contact lawyer Mike Brewer of the Brewer Law Firm. He is a criminal defense attorney with years of knowledge and experience and can provide you the qaulity of legal representation that you deserve. Make sure your legal interests are adequately protect by contacting a criminal defense lawyer that has your penal interests at heart. Attorney Mike Brewer can provide you the best legal representation possible.

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