What Is an Illegal Search in New York?

During the investigation of a criminal offense, law enforcement officers often encounter evidence through a search and seizure. A search can be conducted at a home, a business, a vehicle, or even on your person. The evidence obtained through a search and seizure is frequently relied on by the prosecutor at trial.

Sometimes, however, a search is conducted illegally. Evidence obtained as a result of an illegal search cannot be used at trial, which is why it is imperative that you have an experienced New York criminal defense attorney review the facts and circumstances of your case to determine if you were the victim of an illegal search and seizure.

This is not just a New York matter. The Fourth Amendment to the United States Constitution protects us from illegal searches and reads 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."

The area that was searched will determine the level of protection you have against searches. Your home remains the most protected area, requiring a warrant in order to conduct a search unless one of the few exceptions to the warrant requirement applies. Vehicles operated on a public roadway have a lesser expectation of privacy, and therefore, are afforded less protection when it comes to a search. Although a warrant is not usually required to search a vehicle, a law enforcement officer is still required to provide a legally acceptable reason for the search. Typically, this means an officer must have "probable cause" to conduct the search.

Searching your person is also afforded less protection than your home in many cases. An officer may conduct a "pat down" search, also known as a  "Terry stop," which consists of a brief "pat down" of your person to check for weapons or contraband. This type of search does not allow an officer to conduct a full blown search of your person. Where the line is drawn on this type of search is often difficult to determine, which is why you need an experienced attorney to review your case.

Whether or not a search was illegal is ultimately determined by a judge after argument by both your defense attorney and the prosecuting attorney. If the search was an illegal search, all evidence obtained during the search becomes inadmissible at trial. Furthermore, the "Fruit of the Poisonous Tree" doctrine says that evidence obtained as a result of further searches conducted based on information obtained from an illegal search may also be deemed illegal.

If a search and seizure was conducted in your criminal case, please consult with New York criminal defense attorney Adam Thompson to determine if the search was illegal.