Search and Seizure

Generally speaking, law enforcement are required to obtain a search warrant prior to engaging in a search.  However, there are certain circumstances that allow officers to search without a warrant.  Contact our office to determine how best to attack any search or seizure that was conducted in your case.

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Search Warrant Requirements

     The Fourth Amendment requires a neutral and detached magistrate to make a finding that probable cause exists that evidence of a crime will be found in a particular place.  The validity of a search warrant can be challenged on various grounds.  However, just because a search warrant is invalid does not mean that any evidence discovered during the execution of that warrant will be suppressed.  To win a search warrant challenge a defendant must also overcome what is known as the "good faith exception."  Call our office today so that we can review the facts of your case and advise you accordingly.

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Exceptions to the Warrant Requirement

There a few well defined exceptions to the warrant requirement.  Some of these exceptions only apply to automobiles while others do not apply to the home.

1. Automobile exception

If officers have probable cause that evidence of a crime is contained in an automobile they normally do not need a warrant to search the car.  In State v. Moore the Ohio Supreme Court held that the odor of burning marijuana was sufficient evidence of a crime that officers are permitted to search a car.

2. Exigent Circumstances

There are several "exigent circumstances" that allow officers to conduct an immediate search without seeking a warrant.

a. Imminent destruction of evidence

This occurs when officers encounter a situation where the destruction of evidence of a crime is imminent.  The logic goes, if officers are required to obtain a warrant any evidence they seek will be destroyed.  An example would be if officers discover the odor of marijuana coming from a hotel room, they knock and announce their presence, no one answers the door, and instead officers hear rustling around the room.

b. Hot pursuit

This exception allows officers to chase a fleeing suspect.  If an officer observes someone commit a crime outside of their home that officer has the authority to chase that suspect wherever they may run to--including inside their home.  However, the caselaw about this exception requires that a person be outside.  If officers come across someone in their doorway or if someone answers the door but never comes outside this exception does not apply.

c. Emergency aid

An example of the emergency aid exception is when police receive a 911 call about domestic violence, arrive at the home of the caller and hear screaming or a physical fight they are permitted to enter the home for the purpose of providing aid to the victim.

d. Community Caretaking

The community caretaking function allows the search of certain places not because of a need to render aid to a particular person but to ensure the safety of the public generally.  If officers learn that a firearm has been "stashed" in a certain place that may be accessible to children the police may search for that weapon to ensure that no one is hurt.  The United States Supreme Court recently held that the community caretaking exception does not extend to the home.

3. Inventory Search

The purpose of this exception is to allow officers to search an item that is being held by officers so that they can protect against civil claims.  For example, if officers tow a car they are permitted to search the interior of that car to determine if anything of value has been left.  This exception can be challenged if officers fail to document the inventory they come across or if officers fail to abide by departmental guidelines regarding inventory searches.

4. Search incident to a lawful arrest

This exception applies after an arrest has been made.  This exception allows officers to search an arrestee and anywhere the arrestee may be able to "lunge, reach, or grab."  The purpose is to allow officers to search for weapons or evidence that the arrestee may be able to access.

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CALL OUR OFFICE TODAY SO THAT WE CAN EVALUATE THE INDIVIDUAL FACTS

ASSOCIATED WITH YOUR CASE.

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