What to Know About a Search and Seizure in Virginia
Feb. 10, 2021
A search occurs when a law enforcement agent searches you or your property (e.g., a home, a vehicle, etc.). A seizure occurs when a law enforcement officer detains you or arrests you. A seizure can also occur when law enforcement takes possession of your property. To be lawful, this process must be followed strictly in accordance with the law because the Fourth Amendment to the United States Constitution protects you against unlawful searches and seizures.
But sometimes the police do not follow protocol. Sometimes the police act in an overzealous manner that violates your rights. When your rights are violated, you need an attorney who can identify the violation and promptly take action to ensure your rights are upheld. Bryan J. Jones, a trusted criminal defense attorney based in Charlottesville, Virginia, is committed to you, your rights, and your defense. Contact his office today for the best legal defense you can get in your unique situation.
What Are Searches and Seizures?
The Fourth Amendment to the United States Constitution states that:
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.
The Fourth Amendment is part of the Bill of Rights, and its purpose is simple: to protect people from an invasion of privacy by the government. That does not mean, however, that you or your property cannot be searched or seized. The first part is to understand what a search and seizure is under the Fourth Amendment and the second part is to understand when it is lawful.
What Is a Search?
A search occurs under the Fourth Amendment when a police officer or another public employee accesses something considered private. To be legally private, two factors must be satisfied:
You must have a belief that the thing or place is private and, as such, is not visible to the public. For example, something inside a home is private while something in the front yard is public (unless maybe there is a fence hiding it).
The expectation of privacy must be realistic or reasonable. For example, if there is no fence and the thing is in the front yard, it is not reasonable to think it is private.
If the thing to be searched is public or in plain sight, the police can search it without affecting your right to privacy. If, however, the thing to be searched is private, then the police will have to follow additional protocol.
What Is a Seizure?
To seize a person means to be taken into custody (e.g., arrested or jailed) or detained--i.e. when police stop your car. To have something seized is to have it taken by the police without an expectation or right to have it returned, at least not immediately.
When Is a Search and Seizure Lawful?
When the police want to search and seize a person, premises, or thing, they must have probable cause before doing so. Probable cause means there is enough evidence to indicate criminal activity was likely committed. But probable cause alone is not enough to conduct a lawful search and seizure in most cases.
There are four basic situations where searches and seizures are lawful:
you consented;
the police have reasonable suspicion that you're engaged in criminal activity;
the police have a warrant; or
exigent circumstances are present.
Consent
When you consent, you give the police the right to search your person and/or property without conditions.
Reasonable Suspicion
Before a police officer can stop your car, they must have reasonable suspicion that you have or are currently violating a law. To stop you on the street and detain you against your will, the police must have some reasonable suspicion that you're engaged in criminal
A Warrant
If you do not consent to a search or seizure, in many cases the police must obtain a judge's warrant. The police must present evidence to the judge or magistrate that shows you likely committed a crime (probable cause). This evidence must be in the police's possession before a warrant is granted. Then, once a warrant is given, the search or seizure applies only to what the warrant specifically states and nothing more.
Exigent Circumstances
An officer may search or seize a person or premises when there is a reasonable belief that – unless the officer does so right then and there – evidence will be removed or destroyed. Exigent circumstances are relevant to situations where immediate action is necessary.
Other Situations
Searches of the person are allowed, too, after the person has been arrested. Vehicle searches are also an exception – when an officer believes there is contraband in the vehicle and has obtained probable cause for an arrest, the vehicle can be searched with some limitations. If the vehicle is impounded, it will also be the subject of an inventory search, and any evidence found can be admissible as evidence against you.
How Can Searches and Seizures Be Challenged in Virginia?
Searches and seizures are often challenged. The police – like many of us – make mistakes. They also intentionally make mistakes or skip steps. If a warrant is unreasonable or if a warrant was not obtained, was improperly obtained, or was improperly executed, then the evidence flowing from the unlawful search and seizure can be suppressed or excluded as evidence.
Whenever a search and seizure is improperly conducted, it can be successfully challenged with the right criminal defense attorney.
Who to Contact if You Have Been Charged with A Criminal Offense in Charlottesville, VA?
If you were searched and were either arrested or had property seized after the search, it is important to speak to an experienced criminal defense attorney. Bryan J. Jones will review your case closely and advise you if he believes your rights were violated. Even if your right to privacy was not violated, other rights may have been. These things can play a key role in your defense. Contact Bryan J. Jones today to schedule a consultation.