Law enforcement and citizen interactions occur on a daily basis. If those
interactions involve a search or seizure of property, the general rule
is that a warrant is required. Law enforcement will not always have a
warrant and there may be an exception to securing a warrant before property
is searched or seized.
However, the general rule under the Fourth Amendment requires the government
to secure a warrant based on probable cause, issued by a neutral and detached
magistrate, before searching or seizing property. Because this is a basic
Constitutional right enumerated in the Fourth Amendment of the Bill of
Rights, citizens should not be quick to dispense with its requirements
and assume that every search or seizure of their property is allowed under
the law. Furthermore, it is the duty of the citizenry to ensure that the
government adheres to the Constitution and hold it accountable when their
rights are violated.
If we assume a private party does not consent to the search, and they are
not coerced into consenting, which may be a violation of their Miranda
rights under the Fifth Amendment, and there are no other warrant exceptions,
there are specific rules the government must follow before it conducts
a search or seizure with a warrant.
To determine if the search or seizure was valid, these questions must be answered:
- Was the warrant issued by a neutral and detached judicial officer?
- Was the warrant based on an affidavit establishing probable cause?
- Did the warrant describe the place to be searched?
- Did the warrant describe the items or persons to be seized with particularity?
The answers to these questions may not be readily apparent, and require
the knowledge of an experienced criminal defense attorney. Even if these
conditions are satisfied, the warrant still must be properly executed;
if the warrant is not properly executed, the items seized under the warrant
may be suppressed – that is, inadmissible in court. Here are some
considerations for a properly executed warrant:
- Was the warrant executed within 10 days of it being issued?
- Was the warrant issued for a third-party’s home?
- Did the search or seizure exceed the items outlined in the affidavit?
If your property has been seized by the government, and you want to know
if your rights have been violated, contact my office today. I will provide a
free, confidential consultation.