What are our rights regarding a case of illegal search and seizure?

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What are our rights regarding a case of illegal search and seizure?

A few weeks ago while my wife and I were at home she called 911 for the paramedics as I was on the floor and unresponsive. When they arrived with the police they claimed that I had overdosed on heroin. While the paramedics attended to me and my wife watched, the police began going through our bedroom drawers, closets, and other storage areas. My wife told them to stop and they told her to shut up. Then they came out of a bedroom and claimed to have found three small plastic bags containing heroin. The paramedics transported me to the hospital and the police arrested my wife for possession of a controlled substance. How can we get this case thrown out of court?

Asked on June 17, 2013 under Criminal Law, Illinois

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

There are times when searches can be performed without a court ordered search warrant (i.e. "warrantless searches"). It is up to a court to determine if the warrantless search was reasonable (i.e. that the police's judgment to search was based on logical criminal suspicion).

Warrentless search are permitted in the following circumstances: consent is given for the search; evidence of criminal activity is in "plain view"; a search is that is "incidental to an arrest" (i.e. a person is arrested and both they and the immediate area of where they could acquire a weapon or hide/destroy evidence following the arrest is searched); "exigent" or emergency circumstances (i.e. the police feel someone's safety is at risk or criminal activity is occurring); and searches of cars and their occupants (if the passenger compartment was within reach of someone removed from the vehicle, if the police think that there is evidence in there, or if a suspect had access to the vehicle during the time of the arrest).

A search such as you are describing could fall under something termed a "welfare check" or the like and would fall under the last exception. What you should do now is to consult directly with a criminal law attorney in your area. Go over the details of your situation and have them review all of the facts. They then will be in the best position to advise you.

Tricia Dwyer / Tricia Dwyer Esq & Associates PLLC

Answered 8 years ago | Contributor

Hello. You should have an experienced attorney licensed in your state assist you with this. The attorney will discuss the matter in great detail with you, analyzing your constitutional challenges. Some attorneys are available seven days for emergency legal needs. Many attorneys will confer initially at no charge. Then, if legal work is performed, some attorneys will provide a reduced fee for financial hardship. Some attorneys may also assist you in limited scope manner to conserve legal costs. All the best.


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