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Oct 03, 2021

What Is an Illegal Search?

The cops recently pulled you over and requested to search your vehicle. You let them, and now you’re facing criminal charges. You’re wondering: Were the cops even allowed to do that?

By finding out the definition of illegal search and seizure, you will be empowered to figure out if you have a valid defense for your charges. And with the help of an Oakland criminal defense attorney, you may be able to get off completely or enter into a plea deal and have a better chance of a favorable outcome in your case.

Here’s some more information.

What Is an Illegal Search and Seizure?

Under the Fourth Amendment of the U.S. Constitution, U.S. citizens are protected from illegal or unreasonable searches and seizures. The law is applicable at the local level in Oakland and California, as well as on the federal level when dealing with federal crimes. It protects citizens from officials and police who may be overstepping their boundaries and trying to collect evidence that could be used against them in court.

To have the ability to search an individual or their property like a home or business, the police needs to obtain a search warranty from a judge. The alternative is that the search would fall under an exception that the state and federal courts recognize.

The Exceptions to an Illegal Search and Seizure

If an exception applies, then the police or officials may be able to search you or your property without a search warrant. For instance, if you’re at an international border, then they may be able to search you. If you voluntarily allow the police to search you or your property, or the cops believe that you have evidence of a crime in your car, then these are also exceptions.

The police may also be able to search your outer clothes for weapons, do a search in a situation where you do not have a reasonable expectation or privacy, or search you when the cop is protecting themselves or they think you have evidence that you’re going to destroy. Police can also take items that are in plain view when they are doing a lawful search. Emergency situations could be applicable as well.

All of this may sound confusing. Perhaps that when you let the cops search you, you really had no choice and you did the right thing. For some clarification, you’ll need to get in touch with an Oakland criminal defense attorney to find out if the search was indeed illegal.

Examples of Legal Searches and Seizures

Your home could be searched and the police could seize evidence if some parameters apply. For example, the cops could do so if they have a warrant or you give them consent to search, an arrest occurs, evidence can clearly be seen, or there is a probable cause for the search and evidence is being destroyed.

Let’s say the cops walk in on someone trying to flush bags of cocaine down toilet. This would count as destroying the evidence, which is illegal drugs, and depending on the amount, that person could get charged with possession for sale of narcotics as well.

In another example, the cops may show up at someone’s house because the neighbors reported loud noise. When they arrive, a child answers the door. The cops hear an adult getting beaten up. The cops enter the home to figure out what’s going on and find one adult beating another with a crowbar. Since a crime is happening in plain view and the cops entered the home to protect the child, the evidence will likely be admissible, which means they can use it against the defendant.

Keep in mind that the cops are able to search your car without a warrant in accordance with a traffic stop if there is probable cause to believe that it contains evidence of a crime. For example, maybe the cops smell marijuana when they pull someone over. They may search that person’s car to see if they discover any bags of drugs. The cops can also use a narcotics detection dog, even if it isn’t apparent that drugs may be in the car.

Cops are given the authority to pull you over and question you if they think that someone is committing a crime. The cops may or may not be able to search you depending on your answers to their questions.

In another scenario, if someone robbed a store and then threw out the merchandise in a dumpster afterwards because they didn’t want to get caught – and the cops find that evidence – they can use it against that person. The evidence was abandoned and put into city property, so it’s fair game.

Examples of Illegal Searches and Seizures

Now that you know about legal searches and seizures, here are some instances of illegal searches and seizures.

Let’s say you give the cops permission to enter and search your home without a warrant. They walk around and stop at your kitchen cabinets, perhaps because they expect that you have an illegal gun in there. They ask if they can look inside your cabinets, but you tell them no. They don’t listen and instead search them anyway and find a gun that was not registered to you. Their search was illegal because the gun was not in plain view and they didn’t have your permission to search your cabinets. Additionally, even if you give permission for the cops to search your property, you are allowed to withdraw that consent at any point.

In another case, the police arrive at your doorstep to arrest you for sexual assault. While they are there, they go around your home looking for evidence of this sexual assault, but they don’t have a warrant. They can’t do that.

You could absolutely fight back against charges in these and perhaps even similar cases.

How the Police Obtain Search Warrants

The cops must obtain a search warrant from an appointed judicial official, magistrate, or a federal judge. They need to be able to prove that an individual committed a crime or that they may be able to find evidence that a crime was committed. Essentially, there needs to be what’s called “probable cause.”

Typically, the police will give the magistrate or judge written statements under oath, which are called affidavits, that report their own observations, or the observations of police informants or citizens. The magistrate or judge will then decide whether the affidavit properly establishes probable cause. If they decide that yes, it does, then they will grant the search warrant to the cops. The warrant will be worded in such a way that it is legal. For instance, the warrant has to show exactly what the police are looking for and the place they are looking for evidence.

While the suspect is not present when the warrant is issued, they do have the right to contest it later on, usually with the help of an Oakland criminal defense attorney.

What to Do If a Cop Pulls You Over

If a cop pulls you over, you should keep your hands on the steering wheel so that they don’t think you’re trying to reach for a weapon. Then, if they ask you to hand over your license, registration, and proof of insurance, do that.

However, if they start questioning you, you certainly have rights you can exercise. For instance, you have the right to remain silent. Tell the cop you are exercising that right, but be as polite as possible.

If they ask to search you and/or your car, say that you are not giving them consent to do so. Keep in mind that if they see evidence in plain view or suspect a crime has been committed, then they may not need your consent. Also, they can pat you down if they believe you have a weapon on you.

If you are not under arrest, then you can ask the officer if you are allowed to leave. If you are under arrest, ask why you are being arrested and then request to talk to your lawyer ASAP.

What to Do When Other People Are Involved

If there’s a passenger in your car with you when you get pulled over, they also have the right to remain silent and to ask if they are actually under arrest. If they are not, they can ask the cops if they can leave.

When the cops come to search your home or business without a warrant, remember that anyone with authority over the premises can also give consent to the cops. This means that if you have a roommate who is on the lease like you are, they may be able to tell the cops to come in. Then, you could end up getting charged with a crime.

Using Evidence from an Illegal Search and Seizure

If a prosecutor has brought charges against you, and the cops try to present any evidence obtained through an illegal search and seizure, they will not hold up in a criminal jury trial. In California, this is called the “exclusionary rule.”

What to Do After You’re Charged With a Crime

Whether or not the cops did an illegal search and seizure, there are certain steps you should take after you are charged with a crime.

As soon as possible following your arrest, you need to get in touch with an Oakland criminal defense attorney. Write down the details of your arrest including what actions the cops took and what kinds of questions they asked you. With this information, your attorney can determine whether or not the search and seizure process was legal.

Before you post bail, you’ll also need to get in touch with an Oakland criminal defense attorney. You may discover you don’t actually have to post bail and you could save yourself and your family from a big headache.

Once you get out of jail, you can discuss everything about your case with your attorney, including evidence you may have that proves your innocence. Don’t talk about your case with anyone else, even your loved ones, and you certainly shouldn’t post about it online. If you do, you could end up hurting your chances of winning.

Plea Deals vs. Jury Trials

Most criminal cases end in plea deals, where the defendant pleads guilty to one or all of the charges in order to receive a lesser sentence. Even though this is not the best-case scenario, it is a good alternative where you’re facing a lot of time in jail or prison and/or hefty fines. A plea deal could take years off of your sentence and get you back to your normal life as soon as possible.

If your Oakland criminal defense attorney believes that it’s worth it to fight the charges, they will forgo a plea deal and take your case to a jury trial instead. There, the jury will decide whether or not they believe you are guilty.

It is up to you and your attorney to determine the best course of action for your case. No two cases are the same, so you’ll figure out what to do together.

Contacting Oakland Criminal Defense Attorney Elliot Silver

Oakland Criminal Defense Attorney Elliot Silver has handled a number of illegal search and criminal cases for his clients with outstanding results.

One of his clients said, “Elliot represented me in a recent firearms case, and we couldn’t have asked for a better outcome. His professionalism and behind the scenes work are truly second to none!”

If you’re stressed out because you’ve been charged with a crime after a search and seizure, and you want to make sure you don’t go to jail or face other consequences, there is hope. You can always reach out to Oakland DUI defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at He is standing by and eager to help you with your search and seizure case.

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