What Is a Search and Seizure in New York?

Police Officers Entering a House While Holding Guns

In any criminal prosecution the State of New York must convince a judge or jury that the defendant is guilty beyond a reasonable doubt. To accomplish this goal, various types of evidence may be used, including physical evidence, records and documents, electronic evidence, statements, and witness accounts. Among the numerous ways in which evidence can be gather is through a search and seizure. Sometimes, the search and seizure conducted in an investigation was conducted illegally which may lead to exclusion of the evidence uncovered in the search. Before considering exclusion of evidence, however, you need to understand what is a search and seizure in New York.

A search and seizure can take many forms, including, but not limited to:

  • A search of your home where physical evidence is seized
  • A search of your person where physical evidence is seized
  • A search of your body where biological evidence (blood, semen, saliva, hair) is seized.
  • A search of your computer where electronic evidence is seized
  • A search of your office where written records or documents are seized

The Fourth Amendment to the U.S. Constitution protects us from unreasonable searches and seizures, reading as follows:

"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."

In essence, the Fourth Amendment says that a warrant is required before the police can conduct a search in most cases. The courts, however, have slowly chipped away at the warrant requirement over the years, finding numerous exceptions to the need for a warrant prior to conducting a search and seizure. When a warrant is required, it must be based on probable cause the evidence of a crime will be located at the place to be searched. The police must then submit the request for a search warrant to a judge or magistrate who will review the request and decide to approve or deny it.

If a search and seizure is conducted without a warrant and one of the many exceptions to the warrant requirement does not apply it may be considered an illegal search. If so, any evidence seized during the search may be inadmissible a trial.

If you believe the police conducted an illegal search and seizure in your case consult with an experienced New York criminal defense attorney about the possibility of excluding the evidence obtained as a result of the search.