ILLEGAL SEARCH AND SEIZURE OF YOUR HOME (Understanding Your Rights)
Even the Most Law Abiding Citizen Should Have a Basic Understanding of Search and Seizure Law in Monmouth County As It Applies to Your Home
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Most people consider their home to be a place where they can relax and get away from work and the outside world. Whether your home is a studio apartment or a sprawling estate, your home is your castle. Most of us are protective of our homes as well because we believe that we have the right to keep the outside world away from our private retreat. What happens, however, if the “outside world� is a law enforcement officer? Do you have the right to keep her out? When can the police search your home and do they need a warrant to do so? Before you assume that you will never need to worry about a search and seizure of your home, consider the fact that the police could come knocking on your door one day because your neighbor allegedly committed a crime. Do you have to let them in? Should you let them in? Even the most law abiding citizen should have a basic understanding of search and seizure law as it applies to your home.
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION When America first gained its independence the founding fathers set out to create a document that would guide the fledgling nation for years to come. The United States Constitution is still going strong almost three centuries later. The first ten Amendments to the Constitution, collectively referred to as The Bill of Rights, sets forth a number of the rights we are guaranteed as Americans. The Fourth Amendment is where our right against unreasonable searches and seizures is found and states: "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
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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 NEW JERSEY CONSTITUTION, ARTICLE I, SECTION 7 The United States operates under a federalist system of government, meaning that power is shared between one central government and various state governments. Therefore, each state in the U.S. has its own Constitution as well. Article I, Section 7 of the New Jersey Constitution essentially mirrors the Fourth Amendment by stating: “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 warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.”
OBTAINING A WARRANT TO SEARCH YOUR HOME In short, what both the Fourth Amendment and Section 7 mean is that under most circumstances a warrant is required to search your home. Exceptions to that general requirement will be discussed later. To obtain a warrant to search a private home a law enforcement officer must first have “probable cause” to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched. The precise definition of “probable cause” has been argued and debated since the term came into
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existence. For the purpose of a basic understanding of search and seizure law, however, consider probable cause to require a “reasonable suspicion�. Once an officer believes that probable cause exists to search a home the officer must write out a probable cause affidavit that sets for the reasons why the officer believes probable cause exists and explains, in detail, what property is to be searched and what items are to be searched for at the property. The affidavit must then be signed, under oath, and presented to a judge or magistrate for review. If the judge/magistrate is convinced that the requirements for a warrant have been met the judge/magistrate will issue the warrant.
LIMITATIONS WITH A WARRANT Contrary to what many people believe (and what law enforcement officers often lead people to believe), a warrant does not give officer cart blanche to search a home. In fact, the warrant must particularly describe the property and the items. If the warrant is for electronic records, for instance, the police cannot search under your mattress. If the warrant is for stolen computers, the police cannot open the medicine cabinet in your bathroom where a computer could not fit.
WHEN CAN THE POLICE SEARCH WITHOUT A WARRANT? Many of the rights we once had in the United States have slowly disintegrated after decades of carving out exceptions to those rights; however, the courts have been reluctant to completely do away with the expectation of privacy we have in our homes. Therefore, your home retains the highest level of protection available when it comes to searches and seizures. Despite this, the Supreme Court has carved out some exceptions to the warrant requirement for the search of a home, including: 1. When you consent.This is, by far, the most common method used by the police to circumvent the need for a search warrant. If you consent to the search of your home a
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warrant is not needed. Don’t ever consent without speaking to an attorney first. The police will often tell you it will just save time if you consent because they can get a warrant. Let them get the warrant. 2. When contraband is in plain view.If you allow the police in for any legitimate reason, or even open the door for them, and they see contraband in plain view they can conduct a search without a warrant. 3. When the search is incident to arrest.In many jurisdictions the police may enter your home to take someone into custody on a felony warrant. They are also allowed to conduct a search of the immediate area under the subject’s controlto ensure that the subject does not have a weapon within easy reach. 4. When exigent circumstances exist.An exigent circumstance occurs when an officer has a compelling need to take action but does not have the time required to obtain a warrant.For example, if officers show up at a home to try and talk to a resident and then hear someone screaming for help inside the home they may enter without a warrant.
ILLEGALLY OBTAINED EVIDENCE – THE EXCLUSIONARY RULE What happens if law enforcement officers conduct an illegal search and find evidence of a crime? In that case, the exclusionary rule applies. In essence, the exclusionary rule says that evidence obtained illegally cannot be introduced at trial. The “Fruit of the Poisonous Tree” doctrine further prevents evidence that would not have been found “but for” the illegal search from being used against you at trial. For instance, if the police conduct a warrantless search of your home that turns up an address
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and that address turns out to be a storage facility full of drugs, the drugs might not be admissible if the original search of your home is held to have been conducted illegally. Because you should feel safe and secure in your own home, a basic understanding of when and how that safety and security can be breached by the police is imperative. If you are ever asked to consent to a search of your home consult with an experienced New Jersey criminal defense attorney before doing anything else. Cornell University Law School, Fourth Amendment: An Overview Cornell University Law School, Exclusionary Rule New Jersey State Constitution, Article I, Section 7
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About The Cassidy Law Firm, Attorneys at Law Few attorneys can match the unique success that Harold Cassidy — the founder of our law firm — has achieved. Well-earned statewide awards from his peers and national recognition from mainstream media outlets have resulted from Mr. Cassidy establishing legal precedents and handling high-profile cases. For his blazing of new legal trails, our founder has received national recognition as an ABC News “Person of the Week,” as well as recognition from the state as a Top Lawyer in New Jersey Monthly and inclusion in New Jersey Super Lawyers Magazine. While a high level of acclaim has come our way, we do not forget where our roots are. The attorneys at The Cassidy Law Firm are dedicated to helping New Jersey residents charged with crimes, injured in an accident or needing help with a Chapter 7 or Chapter 13 bankruptcy filing. Attorney Harold Cassidy brings more than 35 years of experience providing representation that some clients have referred to as exquisite. He appreciates the unique problems his clients face, and he provides empathetic and attentive advocacy to the legal matters impacting their lives that include:
Car accidents Birth injuries Surrogate mother and gestation carrier cases Medical malpractice Abortion malpractice Informed consent malpractice Trips, slips and falls Juvenile crimes Criminal appeals Municipal court cases DWI and drunk driving
The Cassidy Law Firm 750 Broad Street, Suite 3 Shrewsbury NJ 07702 Telephone: (732) 747-3999 Fax: (732) 747-3944 Website: www.thecassidylawfirm.com
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