The Fourth Amendment of the U.S. Constitution Bill of Rights was written to protect private citizens from unreasonable searches and seizures by law enforcement and other government officials:
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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It also gives law enforcement the authority to conduct a search of a person or property if they can show that there is “probable” cause to suspect someone of engaging in illegal activity or possessing contraband. However, to do so, they must first obtain written permission in the form of a search warrant issued by a court of law.
A search warrant is a court order issued by a judge that authorizes law enforcement officials to conduct a search for evidence of a crime and to confiscate any evidence they find.
Exceptions to the Rule
There are exceptions, however. Under certain circumstances, law enforcement can conduct a search of your home or person without a warrant:
- Consent – If a person agrees to a search without being coerced or tricked into doing so, then a search without a warrant is legal.
- Plain view – When evidence of a crime or contraband is clearly visible, those items can be lawfully seized and used as evidence in court. Certain “odors” – such as marijuana smoke emerging from a motor vehicle – can also trigger a search without a warrant.
- Search incident to arrest – If there is an arrest in a home or other private property, law enforcement may conduct a “protective sweep” to search for weapons, other accomplices, to protect their safety and prevent potential destruction of evidence.
- Exigent circumstances – This is used only in emergency situations where there is imminent danger to life or property, to prevent the escape of a suspect or to prevent the destruction of evidence.
Evidence gathered without a search warrant is subject to the “exclusionary” rule. This means that evidence gathered in violation of a defendant’s fourth amendment rights cannot be admitted or used against them in court.
If police ask to search your property or person without a warrant, you have a legal right to refuse their request. There are many reasons to deny their request. For one thing, it’s your constitutional right to do so; saying no may prevent them from conducting their search; and a search may result in property damage.
Remember, if you consent to a search without a warrant and incriminating evidence is found, you have forfeited your fourth amendment protections. On the other hand, if you refuse and law enforcement discovers incriminating evidence, the state will have to prove that there was probable cause to search you or your property. This can allow your lawyer to invoke the exclusionary rule and have the evidence against you ruled inadmissible in court.
Frequently Asked Questions About Criminal Defense
During your first meeting, your attorney will ask you a LOT of questions about you and your case. You should be prepared to provide basic info like your full name and contact information, as well as your education and employment history, family history, previous criminal record, and other background information. You may also be asked to fill out a written questionnaire. It will seem like the questions go on forever, but this is all important info that your attorney needs to know!
You will also be asked to bring important documents to your meeting. Things such as arrest and bail paperwork, as well as written info regarding court dates are very important. A list of possible witnesses can be crucial to your defense as well.
You should also come with as many of your own questions as you can think of. Ask your lawyer their experience with cases similar to yours, their success rate, initial thoughts about your defense, and more.
Despite what an officer might tell you, it is both legal and smart to video tape encounters with law enforcement. Video can be strong evidence of your guilt or innocence. Just make sure that you are not interfering with their investigation, and complying with their orders.
It is also not legal for officers to confiscate your phone, demand to see photos or video, or delete any of your data.
The Three Strikes Law states that if you have been convicted of two 3rd degree felonies and you are arrested for another one, if you are convicted you may be looking at some very stiff penalties. These laws are in effect in Texas and many other states.
The stiffer penalties can range from 25 years to life in prison, as well as up to $10,000 in fines. The thinking is that the law will keep habitual offenders off the streets and away from the public, and therefore reduce violent crimes.
Speak with an Experienced Houston Criminal Defense Attorney
If you were arrested as a result of a warrantless search in Houston, you need to speak with experienced Houston criminal defense attorney Lisa Shapiro Strauss without delay. Lisa fights to protect the rights of the accused to ensure they get the fair and lawful treatment they deserve.
In many instances, evidence gathered during a warrantless search cannot be used against you. For instance, if police made a warrantless search and discovered drugs on your person, it may be possible to exclude this evidence. And without evidence to present in court, it is difficult to get a conviction.
Don’t spend time in jail, pay big fines or have your life ruined because law enforcement did something they weren’t supposed to. Hiring a good defense lawyer is the best move you can make. Call Houston criminal defense lawyer Lisa Shapiro Strauss to schedule a free confidential meeting to discuss you case.