Can I sue for illegal search and seizure?

A police officer stops you after you didn’t see a stop sign. He asks for your license and registration (or insurance.) You comply with the officer, but a few minutes later, drug-sniffing dogs are inside and around your car. What brought this on? Is it illegal search and seizure?

What is illegal search and seizure?

In simple terms, it means a search and seizure conducted by law enforcement with neither probable cause that a crime is being committed or a warrant to conduct the search.

A potential illegal search and seizure in action.

This type of behavior is illegal under the Fourth Amendment, which protects American citizens from improper or illegal search and seizure.

Additionally, any evidence that’s gathered from an illegal search and seizure is not admissible in court, under a doctrine known as “Fruit Of The Poisonous Tree.” Under the decision in Mapp Vs. Ohio, 347 U.S. 643 (1961), evidence gathered during an unconstitutional search is inadmissible in a state court criminal trial.

You can inform officers that if they do not have probable cause or a warrant, you do not consent to a search. If your car was searched by drug-sniffing dogs without your consent and they found  something, without a warrant and no probable cause they may have committed an illegal search and seizure. Anything that was found in the process will not be accepted into evidence in court.

The Fourth Amendment

This simply stated part of the Constitution says 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.”

A search, and any evidence collected from it, must have probable cause. If your home is searched, law enforcement are also required to have a warrant to perform a search. There are procedures that must be followed once a warrant is issued.

If the police show up without a warrant and ask to search your home, you can ask for a warrant to be issued first, and decline to consent to a search without one. A warrantless search could lead to procedures not being properly followed.

Warning: even if you state loudly that you do not consent to a search but the officer proceeds to search you anyway, do not resist. You could be charged with obstruction, assaulting a police officer, or other charges. But if the search is illegal, your attorney can file a motion to suppress, which will stop any evidence from the search from being introduced into court.  You may also have a right to a civil court remedy as a result of the illegal search.

A search warrant does not give law enforcement the right to arrest you. They may gather any evidence in plain sight, and may look to see where you are hiding. However, if they gather enough evidence, they can arrest you based on that evidence.

The warrant and illegal search and seizure

This document must contain:

  • The judge’s name
  • Your name
  • Your address
  • The name of the agency conducting the search or arrest
  • Descriptions of items that are being sought

An officer is not required to have the warrant on hand, but if he or she does, under Colorado law they must show it to you upon request. If an officer removes property from your home, he or she must give you a receipt for the property as well as a copy of the warrant.

Note that you do have the right to remain silent and not answer questions. Should they threaten to get a warrant, insist that they do so. They will have to go to court to get it, and may or may not be successful. However, if you consent to a search, they won’t have to get court permission.

If law enforcement insists on doing a search anyway, remain calm, do not interfere, and begin taking notes immediately. If someone is with you, ask them to witness the unconsented search. Record:

  • Names
  • Badge numbers
  • Law enforcement agency or agencies involved
  • Any other relevant information

Call a civil rights defense attorney immediately.

Section 1983

This section of US law (42 U.S. Code, Section 1983) addresses the abuse of the legal system to deprive another person of their civil rights, and allows people to sue the government for any civil rights violations.

For this section to be used, the defendant must have acted “under color of,” in a specific jurisdiction. That is, the individual was acting in his or her capacity as a representative of a governmental entity. A police officer generally does, whether patrolling or performing a search and/or arrest. Police who use excessive force generally come under Section 1983.

It is possible to sue for damages incurred during an illegal search and seizure, if you were arrested. You can sue for property damage, pain and suffering, lost wages and other expenses as well as attorney’s fees

Defend your rights — call today

If you’ve been a victim of an illegal search and seizure, defend yourself. Get a lawyer who is experienced in civil rights violations and Section 1983.

Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We understand civil rights cases, and aggressively defend you in court and make sure your rights are protected.

How do I fight illegal search and seizure in Denver?

Police have specific guidelines when they go out to search a home, or if you’re stopped in a car. Sometimes, procedures aren’t followed. The Fourth Amendment protects you from illegal search and seizure.

How Do I Fight An Illegal Search And Seizure In Denver?

How you’re protected

The Fourth Amendment states that “[t]he 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 State of Colorado also has a similar statute in the state constitution. Police can’t just search your car or home for no reason.

Why police might search

While the Fourth Amendment covers searches that are “unreasonable,” there are times when a search may be considered “reasonable.” Should the police believe they have probable cause to search you, your home, your car, or anything else connected to you, the search is because they believe they can find evidence to prove that you committed a crime. Generally, there is a search warrant issued and signed by a judge for this to happen.

Alternately, there may be extenuating circumstances that allow for a search to be executed without a warrant.

“Fruit of the poisonous tree”

Evidence obtained as a result of an illegal search can also be disqualified. This term was coined after a famous court case, Wong Sun vs. The United States. In this case, the prosecution introduced drugs into evidence that were discovered while in an interrogation during an illegal arrest.

For instance, if you are stopped by police for no reason, and the police find something that leads to hidden evidence (a note, a text, etc.) that they would normally not have found, the two parts equal an illegal search and seizure. The trail that leads them to it is the “tree,” and the evidence found as a result is the “fruit.”

This means that dismissals are two-fold. Charges filed against you as the result of an illegal action can be dismissed as well as any evidence because they were not properly obtained.

Defending yourself against illegal search and seizure

Police are not allowed to conduct searches because they feel like it, or because they “thought there might be something.” If the police come to your door and ask to search the place, you have the right to ask for a warrant. If they believe they have probable cause, you will likely get a return visit from them with one. However, if they have probable cause to conduct a warrantless search and are intent on searching anyway, you may have no choice. Verbally inform them that you do not consent (loudly if there are possible witnesses), but do not interfere with them.

Police can only search whatever is described in the warrant. For instance, if the warrant allows a search of your house, searching a potting shed may be considered an “illegal search.” They are only allowed to seize what’s allowed in the warrant. Searching for and finding something else not described in the warrant may also be “illegal,” but not necessarily.

Hiring a civil rights attorney is your best defense against a 4th Amendment violation.

Should the police violate your civil rights with an illegal search and seizure, you can sue for monetary damages under what’s known as a “1983 action.” The section of the US Code (42 U.S.C. §1983) that covers 4th Amendment violations is where the name comes from, and it’s used to define illegal search and seizure, as well as other civil rights. A skilled civil rights attorney can file charges and proceedings and guide you through the process.

If you are charged with a crime using evidence that is obtained through an illegal search, a civil rights attorney can file a motion to suppress the evidence. If the motion is successful, the evidence, and possibly the case, may be thrown out completely.

NOTE: Even if a search or arrest is illegal, resisting or physically fighting an officer can still result in charges of resisting arrest — a separate charge from the original, wrongful arrest that probably won’t be dismissed. DO NOT resist an arrest, no matter how illegal.

Defend your rights — call today

If you’ve been a victim of an illegal search and seizure, you need an attorney experienced in civil rights cases.

Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We understand civil rights cases, and aggressively defend you in court and make sure your rights are protected.

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Civil Rights Litigation Group

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Denver, CO 80202

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