7th February 2024
- Search and seizure laws exist to protect citizens from abuses of law enforcement power.
- To search your property or person, law enforcement must first obtain a search warrant.
- There are some circumstances in which law enforcement doesn’t need a search warrant, but the requirements are very strict.
- If your rights have been violated, an experienced criminal defense attorney can help protect you.
For centuries, American law has protected citizens from unlawful search and seizure. The police and other authorities have limits on their power to search people, search their property, and seize their possessions.
Knowing your rights when it comes to searches and seizures is crucial for protecting yourself in interactions with law enforcement. If your rights have been violated during a search, you don’t have to face it alone.
The team at Sand Law can help you defend your rights and obtain justice. Our criminal defense attorneys have the background and means to represent your case. You can schedule a free consultation by calling (701) 394-3715 or contacting us online.
What is Search and Seizure?
During the investigation of a crime or suspected crime, police may search people or their property and seize certain items. This often happens against the wishes of the person being searched.
The rules for how this works are referred to as search and seizure laws.
The Fourth Amendment Prevents Unchecked Search and Seizure
The bedrock of search and seizure laws is the Fourth Amendment of the US Constitution. Under the Fourth Amendment, individuals have a reasonable expectation of privacy against government intrusion.
For centuries, this has protected American citizens against unlawful search and seizure. Law enforcement must have a valid reason to believe evidence of a crime will be found.
North Dakota Law Stipulates Standards For Searches
The State of North Dakota has its own search and seizure laws, governing the specific requirements for how search and seizure must work within the state.
These state laws are even more strict than federal search and seizure laws, regulating when a search warrant may be issued, who can issue a search warrant, and how it can be carried out. For instance, a law enforcement official cannot carry out a search warrant at night.
If a law enforcement officer disregards state or federal search and seizure laws, that can compromise their ability to use any evidence they find against you. Additionally, North Dakota law outlines the procedures to defend against unlawful search and seizure, like how to get your property returned.
How Do Search Warrants Work?
The police can’t just search you or your home whenever they want: they need to get a search warrant first. A search warrant is a court order authorizing law enforcement to search a specific location or person for evidence of a crime.
Requirements for a Valid Search Warrant
Search warrants must meet certain conditions to be considered legally valid.
- The warrant must be filed in good faith by a law enforcement officer and signed by a judge
- Law enforcement must include reliable information showing probable cause to conduct a search
- The warrant must include a description of the specific place to be searched and the items they’re looking for
Without all of those elements, a search warrant is not legal. If law enforcement fails to fulfill one of these conditions, any evidence discovered during an illegal search may be deemed inadmissible in court.
Law Enforcement Needs Probable Cause For a Search Warrant
A judge does not approve a search warrant simply because a police officer requests it. To obtain permission to perform a search, law enforcement must have valid and verifiable reasons to believe that a crime has been committed. Suspicion or hunches aren’t good enough.
For example, probable cause can include:
- Witness testimony
- Physical evidence
- Intercepted communications
The Scope of a Search Warrant
Search warrants don’t give law enforcement officials the authority to investigate you however they want. Instead, they are issued for a specific time and place, searching for specific items.
If an area is not listed on the search warrant, it is effectively off-limits, even if it is in the same location. For instance, a warrant to search your house doesn’t mean they can search your car too.
Search and Seizure Without a Warrant
While search and seizure generally cannot be carried out without a warrant, there are some exceptions. Under certain circumstances, law enforcement may conduct a search without obtaining a warrant first.
Common exceptions include:
- Plain view: If police officers see evidence in plain sight, they can seize it without a warrant. For instance, seeing drugs through an open car window.
- Consent: You can always freely and voluntarily agree to a search. However, law enforcement cannot intimidate you into allowing a search. They are also prohibited from extending the search beyond the areas you’ve consented to.
- Search incident to arrest: While you’re being arrested, law enforcement can search your person and immediate surroundings for weapons or evidence related to the arrest.
- Exigent circumstances: If there’s an immediate threat to life or safety, a warrantless search may be justified.
What Should I Do if I’m Searched?
Encounters with law enforcement can be frightening and stressful for anyone, even law-abiding citizens. Here are a few tips for handling search and seizure:
- Do not consent to searches: No matter what law enforcement officers say, consenting to a search never makes the situation better for you. Do not say anything that may be construed as permission for a search.
- Ask questions: You have the right to know details of your search and seizure. Ask why you’re being searched, and ask the officer to produce a warrant.
- Document the encounter: If possible, take notes, including the officers’ names and badge numbers. Additionally, you are legally allowed to record encounters with law enforcement in North Dakota, including video.
- Seek legal counsel: If you have concerns about a search, consult with a criminal attorney right away. They can assess your individual circumstances and advise you on your options.
Fruit of the Poisonous Tree
Law enforcement cannot legally search you without a warrant or probable cause. If they do so, any evidence they obtain cannot be legally admitted in court. This is called the exclusionary rule. Another name for evidence collected during an unjust search is sometimes referred to as the fruit of the poisonous tree.
In addition, if they use this evidence as justification for further searches, that evidence can’t be used either. If you believe this has happened, an experienced criminal defense lawyer may be able to challenge its use in court. This can result in the entire case being thrown out of court.
Sand Law Can Help You After an Unjust Search and Seizure
When it comes to understanding search and seizure law and protecting your rights, the insight of an experienced criminal defense lawyer is incredibly valuable. Following an encounter with a law enforcement officer, an attorney can help you:
- Understand your rights under search and seizure laws
- Protect your interests if your rights were violated
- Gather evidence that the search was unsanctioned or otherwise illegal
- Communicate with the authorities effectively
- Navigate the legal process and guide you through the complexities of the court system
If you or a loved one has been subjected to an unlawful search and seizure of your property, the experienced criminal defense attorneys at Sand Law are ready to help protect your rights. We understand search and seizure law and how to build an effective defense.
Defending yourself against the overreach of law enforcement and the criminal justice system can be daunting, but you’re not alone. At Sand Law, we understand what you’re going through. Our team has a proven track record of successful criminal defense.
Frequently Asked Questions
Can law enforcement search me without a warrant?
If a police officer wants to conduct a search, they are generally required to provide a search warrant signed by a judge. However, there are some exceptions. An officer can conduct a search without a warrant in circumstances such as:
- You freely give your consent for a search
- There is immediate danger or risk of evidence destruction
- You have just been arrested (the search can only include your person and immediate surroundings)
Can I refuse a search?
You have the right to refuse consent to a search. Politely state your refusal and ask if the officer has a warrant. Law enforcement will then need a search warrant or probable cause to conduct a search.
What can I do if my rights were violated during a search?
If your rights were violated, and an illegal search has been conducted, first calmly assert your concerns to the officers at the scene. Make it clear that you do not consent to any searches without a warrant or probable cause. Document the violation if you can safely do so.
From there, get in touch with an experienced criminal defense attorney who can advise you on your legal options.