The actions of police officers and investigators can affect the outcome of a trial. Failure to follow proper procedures, conduct constitutional searches, or properly execute a search warrant can require dismissal of charges. Due to the doctrine of the “fruit of the poisonous tree,” any evidence found or seized during an unconstitutional search must be excluded at trial – although there are circumstances where the court has held otherwise. Understanding basic facts surrounding issues of search and seizure may help you and your attorney in formulating your defense strategy or asking the court to dismiss the charges against you.
The information provided below is a general overview of certain key issues that often arise in drug crime cases, though they apply to other kinds of crime as well. For more information regarding our practice and how we can help you, contact our Phoenix search and seizure attorneys at Blumberg & Associates today.
CAR STOPS AND CAR SEARCHES
Police can pull a car over for traffic violations and if an officer has reasonable suspicion a car is involved in illegal activity. Once a car is pulled over, an officer can ask a driver for permission to search the car. The driver can choose to grant or deny permission. If an officer smells marijuana or alcohol, he can then search a car, regardless whether the driver grants him permission to do so. If there is no immediate evidence of alcohol or drug use, an officer does not have the right to search a car, and anything found during an illegal search will likely be excluded as evidence against you if you are arrested.
However, an officer can conduct a car search if he sees something in plain sight – a beer can, bong, “roach,”or gun – indicative of criminal activity. In cases where an officer is denied permission to search a car, he can impound the car, and may obtain a search warrant, and search it later.
SEARCHES OF HOMES AND SEIZURE OF PROPERTY
In general, the police can only enter your home under three conditions: 1.) if you invite them in; 2.) if they see something in your house from the sidewalk or front porch that gives them probable cause to enter; and 3.) if they have a valid search warrant signed by a judge. If you invite the police into your home and they see or hear something they believe indicates criminal activity, they have probable cause to investigate further. If you don’t invite them in they cannot enter your home and conduct a search. If they peer over or around you and see something like a gun, bong, or someone nursing a fresh wound, they may enter to investigate further.
If the police have a valid search warrant, they can search only those areas indicated, and seize only those items specified in the warrant itself. If a search warrant covers your entire house, police can only search in areas that are reasonable to look in. For example, if a search warrant is for stolen plasma TVs, the police cannot search your medicine cabinet or tackle box for the simple reason that a plasma TV can’t fit in these places.
SEARCHES OF YOUR PERSON
Police can search you if they have a reason to believe you have been involved in criminal activity. In general, however, they can only search those areas that are under your immediate control. If, for example, they believe you are in possession of drugs and you have a backpack on or are carrying a purse, they can search them since they are under your immediate control. Alternatively, if you are at a bar and the police search you for drugs, they can’t take you to your car in the parking lot or take you back to your home to search it as well.
The war on crime has ignited a war on rights. Police departments across the nation have been emboldened by new drug laws, the Patriot Act, and recent Supreme Court rulings interpreting the Constitution. If you’ve been arrested after a search of your person or property, contact criminal defense attorneys at Blumberg & Associates today to discuss your case and learn how we can help you.
