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Understanding what an illegal search and seizure is

Facing criminal charges can be a very stressful and confusing time for individuals in New York. One may not fully understand the allegations against them. Moreover, the accused may not be aware of the evidence collected and how it is being used against them. In some situations, evidence may not be collected properly and could be deemed an illegal seizure. Defendants should understand what an illegal search and seizure is in order to determine if the evidence is subject to dismissal.

A police investigation turns into a search when the person whose home or property was being investigated expected a degree of privacy, and the expectation was reasonable. If an investigation transitions into a search and these two conditions exist, police are required to obtain a search warrant.

The court issues a search warrant when the police prove probable cause that a crime occurred and that evidence or contraband is likely to be found at the place they seek to search. There are some instances when a search warrant isn't required to conduct a search. If consent is given, there is an emergency situation, the search is incident to an arrest or the evidence was in plain view. If none of these exist, it could be considered an unlawful search.

During a traffic stop, police officers are allowed to stop and frisk the driver and passengers if there is reasonable suspicion that the individual is armed. Police are also allowed to search the passenger compartment of a vehicle after a stop if the arrestee was within the reaching distance of the compartment at the time of the search, or it is reasonable to believe that the compartment contains evidence of the offense the individual was arrested for.

The information above is just general information regarding search and seizures and should not be used as legal advice. Those accused of a crime following a search and seizure should ensure that a proper search and seizure was conducted. If a defendant can show that it was conducted illegally, this could be used to dismiss evidence, helping the accused reduce or even dismiss the charges against him or her.

Source: Findlaw.com, "Illegal Search and Seizure FAQs," accessed June 21, 2015

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