What is an illegal search and seizure?

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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 15, 2021

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When a police officer conducts an illegal search and seizure, the evidence obtained as a result of the illegal search cannot be used against you. This usually results in a dismissal of the case if no other evidence exists to support a conviction. This theory of excluding evidence is called the fruit of the poisonous tree doctrine. This means that any evidence obtained after an illegal search or seizure, including evidence and statements made after Miranda warnings, are “tainted” by the poison of the illegal search and seizure or arrest.

Only evidence that is seized legally can be used against you. Although this concept seems pretty simple, the constitutional interpretations of search and seizure laws vary by state law and federal law, and even more so by factual circumstances. Some states actually provide more protection from illegal search and seizures than the Constitution. 

State Laws About Illegal Search and Seizure

Within states, appellate courts are broken up into regions. An appellate court is the court that will decide your appeal if you are convicted, and review the trial court’s decisions regarding your allegations of an illegal search and seizure. Even within a state, different appellate courts can conflict on what they consider to be illegal with regard to searches and seizures.

For example, the issue related to drug dogs and whether a dog sniffing your belongings qualifies as a search has been contested within several appellate courts. If you are pulled over, the police may decide to request the assistance of a K-9 handler. The handler will bring out a dog to sniff around your car to see if drugs are or have been present in the car. If the dog “alerts,” then the police officer has probable cause to conduct a car search. This issue arises in the length of time you should be required to wait for the drug dog. 

Every court agrees that the length of the detention should not be “unreasonable.” Some appellate courts will review what is unreasonable on a case by case basis. Other appellate courts say that having to wait longer than twenty minutes for a drug dog to arrive is per se unreasonable, and have suppressed seizures that involved unreasonably long waits.

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Search and Seizure Law Exceptions

Even if an initial search and seizure is deemed illegal, it does not automatically mean that you win. Search and seizure laws do have exceptions. The most notable one is the “doctrine of attenuation.” The idea is that even if the search and seizure was illegal, it doesn’t really matter because the cops would have still discovered the evidence. Essentially, if something breaks the “taint” of an illegal search, then the evidence can still be used.

Continuing with the example above, if it takes the police officer an hour to get a drug dog to your car, there is a fairly good chance that the seizure and subsequent search of your car will be deemed illegal. If a car search reveals a marijuana stash the police officer will place you under arrest. If cocaine is later found in your pocket, it should also be suppressed. However, if there was an outstanding warrant for your arrest at the same time, many courts will hold that even though the marijuana doesn’t come in (because it was the result of an illegal search and seizure), the cocaine will because, once the officer ran your criminal history, he would have learned of the warrant, placed you under arrest, and found the drugs. Basically, no harm no foul. 

Getting Help

Search and seizure laws have historically remained the same. However, it is the appellate interpretations of those laws which are constantly changing. If you are thinking about challenging a car search that you feel was illegal, consult with a criminal defense lawyer in your area. A criminal defense lawyer can review the circumstances of your arrest compared to the current version of search and seizure case law in your jurisdiction to help you win a motion to suppress.

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