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What is considered private in a search and seizure context?

| Nov 30, 2016 | Drug Charges |

Police in New City who engage in a search and seizure of drugs, whether it is through a routine traffic stop or at a person’s home, still must abide by the Fourth Amendment of the U.S. Constitution. This amendment protects against unreasonable searches and seizures. However, it is important to understand when a “search” during a police investigation occurs and whether the property seized was private.

In general, the court will look at two factors to determine if what began as an investigation by the police has in fact become a search. First, would the individual expect a certain degree of privacy in the home or property being investigated? Second, would that privacy expectation be considered reasonable?

If the answer to these two questions is yes, then the court will find that the investigation interfered with the individual’s reasonable privacy expectations. If the answer to either question is negative though, then the investigation is a search.

Next, let us consider when a person’s property is private. In general, property located in one’s home is private. Generally, if the police want to enter one’s home, they need to obtain a search warrant from the court. But, there are exceptions. For example, police can take aerial photographs of a person’s home or can eavesdrop (although they cannot use high-tech equipment to do so) to get the information they need to obtain a search warrant.

If an officer seizes drugs without a warrant when a warrant is necessary, the evidence of such a seizure cannot be used in court. But, keep in mind that if a person consents to a warrantless search, that person’s right to challenge that search is waived.

In addition, if the police are on a person’s property for a lawful reason, and evidence of drugs are in plain sight, they may be seized. This is true even if the officer does not have a warrant to do so.

As one can see, while the Fourth Amendment’s ban on illegal searches and seizures is multifaceted. It is riddled with exceptions and complications. Therefore, if a person accused of a drug crime believes that the charges against him or her are based on an illegal search or seizure, he or she should take the necessary steps to protect his or her rights.

Source: FindLaw.com, “Illegal Search and Seizure FAQs,” accessed on Nov. 27, 2016

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