If you are under investigation for a drug-related offense, or have been arrested and charged with a separate drug crime, you may face a subsequent search of your home or vehicle. When can a law enforcement officer engage in such a search? What does the law require to make such a search valid and what happens if the officer violated required procedures?
Your Right to Be Free from “Unreasonable Search and Seizure”
Under the 4th Amendment to the U.S. Constitution, you have a right to be free, in your “persons, homes, papers and effects” against unreasonable searches and seizures. The courts have consistently ruled that this provision is based on an expectation of privacy. Accordingly, when you are subjected to a search, the test will often use a two-part test:
- Did you actually expect that the area searched would be private?
- Was that expectation reasonable?
Accordingly, if you have drug contraband in plain sight, you generally won’t be able to argue that you had an expectation of privacy. In addition, the courts would likely conclude that the contraband was not obtained through a “search,” as it was in plain sight. Furthermore, if there’s evidence of illegal activity in plain sight, that typically constitutes probable cause to conduct a complete search.
In the absence of visual evidence, law enforcement officers can ask a judge to issue a search warrant. The warrant, according to the 4th Amendment, must be based on probable cause.
The Impact of an Illegal Search
If police officers conduct a search without a warrant or without probable cause, any evidence obtained is considered tainted and will likely be excluded from consideration by the judge and/or jury. Under such circumstances, the charges against you may be reduced or dismissed altogether, if there is no other compelling evidence.
Contact the Law Offices of McNerney & McAuliffe
At McNerney & McAuliffe, we fight for the rights of people facing any type of drug charge, including possession of marijuana and drug paraphernalia. Contact our office by e-mail or call us at 201-525-1980. All major credit cards are welcome. We will travel to meet with you, if necessary. Evening and weekend consultations are available upon request.