Illegal Search and Seizure
The Two Most Common Reasons Evidence Get Suppressed
It is very common that clients come into our office thinking that the police did something wrong and that we should be able to get them out of trouble. It is one of the most important parts of our job. We must review every case carefully to see if the law enforcement did something improper that could give cause for a motion to suppress that could possibly lead to dismissal of the charges.
Most people have a general understanding that they have constitutional rights and that those rights can’t be violated. In the case of a criminal case, the right to be free from unlawful search and seizure is one that comes up quite frequently.
Common Issue #1: The unlawful stop
Police don’t have the right to just drive around or walk around and stop people to see if they are up to no good. The police can engage in a consensual encounter. This means is a police officer enters into a casual conversation with a person but did not stop them with their car or with their voice, then that contact is consensual and is in no way illegal. However, if a police officer stops a person with their car or with their voice they must have reasonable suspicion that criminal activity is being engaged.
Many times traffic stops like speeding, improper turn, license plate light out, etc. are used for a reason to stop a vehicle and see if further criminal activity is taking place. However, they cannot hold that car any longer than what is necessary to effectuate the traffic ticket. Otherwise there must be some articulable reason to believe criminal activity is happening to stop and detain a person. If there is a stop where the criminal activity did not exist, then there may be grounds for a suppression that could possibly lead to the case being dismissed.
Common Issue #2: The illegal Search
The second most common police issue we see is the illegal search. First we must start with the premise that police normally are not allowed to conduct a search unless they have a warrant. A warrant can only be granted once a judicial officer has heard or reviewed evidence and determined that there is probable cause of criminal activity that justifies the search being requested by law enforcement.
Most often the issues regarding searches that we see involve either searching a car or a person. Police may, many times search a car without a warrant. This is because of the theory that cars are inherently mobile and therefore destruction of evidence may occur if a warrant was waited for. However, again there must be articulable facts to justify the search. This most often involves the odor or indication of drugs present in the car. The police will also many times request permission to search. A person can always say no this request. It is your property there is no requirement to consent to someone searching your property. If the police have no other cause and you say no, then they have to let you go and let you move on.
There are two main reasons police will search your person without a warrant. First, in certain situations they may do a pat down search for officer safety. If this search is allowed and police can tell that they feel drugs or weapons, they may confiscate them. Also, if the police are arresting you, they are allowed to do a search incident to arrest. However, without one of these set of circumstances, then the search may be deemed to be illegal and could result in the exclusion of evidence and possible dismissal of charges.
In summary, there are the two largest areas where there may be positive attacks made that could benefit a criminal case. If you have been charged with a crime you should contact an Indianapolis criminal defense attorney at Banks & Brower to evaluate your case to see if there might be an issue with the police search or seizure in your case. Give us a call today to schedule a free case evaluation at 317-870-0019.