If You Were Subject to an Unlawful Search and Seizure

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When you are investigated by the police or arrested for committing a crime in Virginia, you have important constitutional protections under the U.S. Constitution. The Fourth Amendment protects you against an unlawful search and seizure. If your rights were violated, you may have a strong defense in your criminal case that may result in the charges being dismissed or reduced to a less serious offense. 


Your Rights Against an Unlawful Search and Seizure in Virginia


Your constitutional right against an unlawful search and seizure applies only to government officials and law enforcement officers. Under the Fourth Amendment, the police are not permitted to search your car, your home, your business, or you without first establishing probable cause and obtaining a search warrant signed by a judge. This law does not apply to private security guards.

Your right against an unlawful search and seizure applies only when you have a “reasonable expectation of privacy.” The courts use a two-prong test to determine whether your expectation of privacy is met:


  • Did you actually expect privacy?
  • Is the expectation of privacy reasonable by our society’s standards?


When the Police Can Stop You and Conduct a Pat Down

A police officer has the right to briefly detain you when, based on his experience and training, he has a reasonable suspicion that criminal activity is occurring. This does not give him the right to search you unless you consent or he has a legitimate purpose.

He would have a valid reason to search you if he has a reasonable suspicion that you are armed. In this situation, he has the right to pat you down for a gun or other weapon that could jeopardize his safety. If the officer feels contraband in the course of a pat down, such as drugs, he is permitted to pull it out.


When the Police Can Search Your Car


When the police stop you for a traffic offense, the officer cannot search your vehicle without a valid search warrant unless you consent to the search. You do not have to agree to this, and it would not be in your best interests to allow a search. There are two exceptions to this rule:


  • The police see or smell something, such as alcohol, in your car that gives them probable cause to search.
  • The police arrest or detain you for another reason.


When a Search or Seizure Is Allowed Without a Warrant


In certain situations, a search and seizure without a search warrant will not violate your constitutional rights. The police have the right to search you or your property without a warrant in these situations:


  • Your arrest. If the police are arresting you, they have the right to search you as part of the arrest process.


  • Your consent. If you consent to the police searching your property or you, they are permitted to do so without a warrant. Any evidence they find can be used against you.


  • Plain view. If there is property left out in plain view, you do not have a reasonable expectation of privacy under the law. The police would be permitted to search and seize this property that you left out in the open.


  • Traffic stop. The police have a right to search in a traffic stop if they have probable cause to suspect contraband or other property obtained in a crime is in the vehicle.


When Evidence Is Obtained in an Unlawful Search and Seizure


If evidence is obtained in an unlawful search and seizure, it cannot be used by the prosecutor or police against you under the exclusionary rule. In addition, if the police find other evidence against you from an unlawful search and seizure, this evidence also cannot be used in court under the fruit of the poisonous tree doctrine.  Having evidence excluded can be extremely important to your criminal defense. The prosecutor may be forced to dismiss the charges against you or reduce them to a less serious offense in a plea bargain.


Contact Us for Help Building a Strong Defense


If you’ve been charged with a crime in Midlothian or Richmond, our experienced criminal defense attorney can help you raise strong defenses, including ones involving violation of your constitution rights, so you can achieve the best possible outcome in your case. Call our office to schedule a free consultation today to learn more about how we can assist you.

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