The U.S. Constitution doesn’t prohibit all searches by police—just those that are “unreasonable.” When police conduct an unreasonable search, it’s considered a violation of your Fourth Amendment rights and illegal. What are the implications of an illegal search? Will criminal charges be dropped? Can you sue? As the typical legal answer goes, it depends.
This article provides a brief overview of illegal searches and possible remedies.
What Is an Illegal Search and Seizure?
An illegal search occurs when an officer has neither a search warrant nor an exception to justify a warrantless search.
Search Warrant
To get a search warrant, police need probable cause to believe a crime was committed and evidence of the crime will be found in a particular place. The search warrant basically provides a judicial permission slip to search for criminal evidence. Often a warrant will be needed if the police want to search someone’s home, cellphone, or office.
The Many Exceptions to the Warrant Requirement
Even without a search warrant, a police search may be reasonable. Courts have decided that many instances justify a warrantless search. Seeing contraband in plain view, responding to an emergency, or getting someone's consent are all exceptions to the warrant requirement. Several other exceptions exist.
Illegal Search and Seizure Example
As noted above, when an officer conducts a search without a warrant or a legally recognized exception, the search violates the Fourth Amendment. Let’s say an officer sees someone running into an apartment complex. Thinking suspicious activity may be afoot based on nothing but a hunch, the officer follows the person into the complex and to their apartment. The officer asks the person to consent to a search of their apartment. The person refuses, so the officer nudges the door open and sees drugs on the coffee table.
The officer’s search here was illegal. The officer didn't get a warrant to enter the person’s home, and no warrant exceptions were at play. Someone running into a building, without more, doesn’t provide probable cause of criminal activity or an emergency. Once the person refused to consent, no reason existed for the officer to nudge open the door. The officer illegally found evidence of the drugs. So what happens next?
The remedies for a person subjected to an illegal search depend largely on the situation. Certain remedies are available in both criminal and civil court.
What Happens in a Criminal Case After an Illegal Search?
If a prosecutor filed criminal charges in the case, a few things might happen. Sometimes an illegal search means the end of a case, but often prosecutors can find a way to get the evidence into court. It's your criminal defense attorney or public defender's job to argue why it should be kept out.
Exclusionary Rule
To deter police from conducting illegal searches in the first place, the U.S. Supreme Court created what’s called the exclusionary rule. The exclusionary rule prevents illegal evidence from being used against a defendant to prove their guilt in criminal court. It reasons that, if police can’t use evidence obtained illegally to convict someone, they are less prone to resorting to illegal tactics. But how does this rule play out in a criminal case?
Will Charges Be Dismissed?
An illegal search doesn’t necessarily mean the charges must be dropped. But if police have no other evidence to tie the defendant to the criminal activity, they might. The exclusionary rule prohibits the introduction of illegally obtained evidence to the extent it’s used to provide direct evidence of one’s guilt. So without other evidence to support the charges, the prosecutor may have no choice but to dismiss the case.
Evidence Allowed Under an Exception
Several judicial exceptions, however, exist that allow evidence of the illegal search to be admitted in the case. For instance, say the police inevitably would have found the evidence or they had an independent source of the illegal activity. These factors might persuade a judge to allow the illegally seized evidence into court. If the prosecutor successfully argues to get the evidence admitted, the case continues.
Evidence Allowed to Prove Something Other Than Guilt
If other admissible evidence exists to show a defendant's guilt, the prosecution wouldn’t need the illegally obtained evidence to support the criminal charges. The prosecution might then try to introduce the illegally obtained evidence in a different capacity, such as to impeach (or attack the credibility of) a defendant’s testimony. Say the defendant testifies he’s never been involved in any criminal activity. The prosecutor might be able to use evidence of drugs in his apartment to challenge the veracity (truthfulness) of his testimony.
Can a Person Sue the Police in Civil Court for an Illegal Search?
Regardless of how the criminal case progresses, state and federal law allow citizens to sue government actors—like police—for civil rights violations, such as an illegal search. Another common civil rights violation is excessive use of force during an arrest.
The ability to sue in civil court provides an avenue for aggrieved citizens to protect and vindicate constitutional guarantees. At the same time, however, the law puts up several obstacles that can be difficult to overcome. Some laws provide government actors immunity from liability for discretionary duties. Proving damages can also be difficult in these cases—while this challenge might not mean the end of a civil case, it can make it financially difficult.
Overall, a person’s ability to succeed on their civil claim depends on the facts of the case and the law in their jurisdiction. While lawsuits are notoriously difficult to win under federal law (referred to as a Section 1983 claim), some states have enacted their own laws to provide greater rights to aggrieved citizens.
Talk to an Attorney
If you believe police conducted an illegal search, talk to a criminal defense attorney about possible options and defense strategies in your case. A criminal defense attorney can also assist in getting back property seized by police (unless it's contraband).
For questions regarding bringing a civil lawsuit, talk to a civil rights attorney.