Illegal Search and Seizure: 4th Amendment Violations May Warrant Money Damages

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Illegal search and seizure by the police in conflict with the 4th Amendment may give you the right to sue the police for damages. The 4th Amendment provides that we should be free from unreasonable or illegal search and seizure, and it is generally enforced by exclusion of the evidence from any trial should you be prosecuted. According to federal law, though, you can also receive money damages, and even have your attorney’s fees paid, if you are the victim of an illegal search and seizure.

When is the 4th Amendment Violated?
The 4th Amendment states that all citizens have “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.” Illegal search and seizure is referred to specifically within the 4th Amendment.  

In other words, a search and evidence collected from that search requires probable cause. If the place searched is a home, a warrant is also necessary. If the police search and seize property without a warrant, then they have violated the 4th amendment and the evidence will be excluded at trial.

When Can I Sue for an Illegal Search and Seizure?
Accidents happen, so not every illegal search and seizure is grounds for suppression of evidence. If the officers were acting responsibly and without malice, or even if they thought that a warrant had been issued, then the evidence will most likely not be suppressed, and the search and seizure will be considered Constitutional under the 4th amendment. Under Section 1983 of the United States Code, citizens may collect money damages for being deprived of any of their rights under the Constitution or Federal law. In the case of illegal search and seizure, a valid claim can be brought if the police officers were acting “under the color of law” and actually deprived you of your freedom. That means that the police officer must have been on-duty at the time of the illegal search and seizure and must have actually arrested you.

Another factor that is used when interpreting this area of Section 1983 is whether the police acted with “malice.” Malice means that the officers intended to illegally search your home and arrest you, the result of which was found by the court to be malicious prosecution. If your case has been dismissed from the court on grounds of malicious prosecution, then you have the right to sue the police for damages and should consult with an attorney to begin your case.

What Must I Show for Money Damages?
The Supreme Court has held that a person suing for damages associated with an illegal search and seizure has the right to ask for the same kinds of damages generally available in an injury case. This means that there are different types of damages you may request.

The first type of money damages is known as compensatory damages. These damages repay you for damage done to you or your property as the result of the illegal search and seizure. So, if the officers ripped apart your mattress during the search, you will receive a payment in full for the value of the mattress to purchase a replacement. Payment for pain and suffering as well as loss of income also fall under this category. For instance, if you were incarcerated for two months during the trial and lost your job as a result, then you will be compensated for the loss of income.

If you do have a malicious prosecution case, then you can also sue for punitive damages. These are money damages that are meant to punish the state for the actions of the police officers. Check with your attorney about the overall amount of these damages, as it is limited in many local governments.

When are Attorney’s Fees Included in the Damages?
Under the Civil Rights Attorney’s Fees Awards Act of 1976, plaintiffs who win their Section 1983 case are also entitled to attorney’s fees. This measure was designed to ensure that citizens bring their cases to light and hold the state responsible for their actions. In recent years, this law has generated a substantial increase in the number of cases filed.

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