SEARCHES:

- MUST ONE SUBMIT ?

If you, your vehicle, or your residence were searched illegally, a court, pursuant to an appropriate objection, could preclude any evidence found during the search from being used against you. Therefore, the purpose of the following information is to provide some brief material regarding searches:

1.  RESIDENCE SEARCHES, PURSUANT TO A WARRANT:  In the absence of some emergency situation, circumstances may possibly allow the police to conduct a search of an individual's residence.  They would, however, first be required to attain a valid search warrant.

2.  RESIDENCE SEARCHES, PURSUANT TO CIRCUMSTANCES:  In the absence of a search warrant, a law enforcement officer, under certain situations, may conduct a search of a residence, where the underlying purpose was to act under what would be considered emergency circumstances. This might occur where an officer was trying to prevent an individuals escape or prevent the destruction of evidence.

3.  RESIDENCE SEARCHES, PURSUANT TO AN ARREST:  In the event that the police were to make an arrest of an individual in their own residence and take them into custody, the arresting officer, without a search warrant, could then validly conduct a search of the immediate surrounding area of the residence in which the arrest had just occurred.

4.  VEHICLE SEARCHES, PURSUANT TO CIRCUMSTANCES:  In the absence of a search warrant, vehicles may be searched, under circumstances where an officer has good reason to suspect the presence of stolen or illegal goods or evidence.  Of course, once the police stop a vehicle for any valid reason, anything in plain view that appears illegal, may be searched and seized.

5.  FULL-BODY SEARCHES, PURSUANT TO AN ARREST:  Where an individual is placed under arrest in anticipation of being taken into custody, the arresting officer may, without a search warrant, validly conduct a full-body search, for weapons, or for any stolen or illegal goods. A search of this type would presumably, however, be related to whatever charges are being brought.

6.  LIMITED-BODY SEARCHES, PURSUANT TO A DETENTION:  Individuals are sometimes stopped by the police for a relatively short period of time, but not actually arrested. The technical term for this is a detention, and it occurs during brief investigations when an individual is merely detained and held for questioning. A detention would allow a law enforcement officer, without a search warrant, to conduct a somewhat limited search for weapons, usually consisting of a pat-down of your outer clothing.

7.  ANY SEARCH, PURSUANT TO ONE'S CONSENT:  In the absence of a valid search warrant, or other some other appropriate circumstances to validate a search, the police can always conduct a search if an individual were to give their consent.  Furthermore, once having received such consent to a search, while in the process of conducting that search, an officer can seize any evidence of criminality that is in plain view.

It is essential that one understand the distinction between, on one hand, consent to an otherwise invalid search, and on the other hand, submission to a valid search. The distinction is crucial because while the later is for the most part, advisable, the former is generally inadvisable.  Therefore, if you, your vehicle, or your residence are the subject of an illegal search, and you have not given consent, under an appropriate objection, a judge could hold that any evidence found during the search cannot be used against you in any court proceedings. You should be aware, however that if no objection is appropriately raised in a timely fashion, the objection may be deemed waived and the court could, therefore, allow the evidence to be used.

With that in mind, if you have matter pending in which the validity of a search may be at issue, it may be critical that you consult with and seek the advise of an attorney having the training and experience to handle matters in this particular arena. And because timing may be of critical importance, it is crucial that such action be taken as early in the proceedings as is possible.
                                                  ALL RIGHTS RESERVED, DOUGLAS HOLBROOK, 2001