Search and seizure law dictates where and when law enforcement may examine your private property or person. The Fourth Amendment protects the privacy of individuals from unwarranted search and seizure, but when is it relevant and when are the police justified in searching you or your belongings?
In order to conduct a legal search, law enforcement must have either a) a court-issued search warrant; or b) probable cause, meaning sustentative reason to believe you are breaking the law.
Search and seizure in Louisiana that are carried out without at least one of these prerequisites are in violation of the law and the rights of the person being searched. Read on to learn more about search warrants in Louisiana, probable cause, and what happens if an illegal search and seizure is conducted. If your rights were violated, it’s critical that you contact a New Orleans criminal defense attorney as quickly as possible.
How Does a Search Warrant Work?
When law enforcement wants to search a person’s home or property, or make an arrest, in most cases they must first acquire a warrant from a judge. Law enforcement gathers evidence of the crimes they believe have been committed and presents it to a judge. The judge then reviews the case, and if they believe the evidence is substantial for search or seizure of property, or an arrest, they will issue a warrant.
For a search warrant to be valid and legal it must meet the following criteria:
- A law enforcement officer must file the search warrant in good faith;
- Before the warrant is issued, there must be reliable evidence indicating probable cause for search and/or seizure;
- The warrant must thoroughly list the place or places to be searched and the item or items to be seized;
- The warrant must be issued by a neutral third-party judge.
A search warrant is issued for the search of a specific location and/or the seizure of specific belongings or objects. The warrant allows law enforcement to search these places and seize these items, but search and seizure of any other personal belongings or spaces is not permissible without another warrant.
What Is Probable Cause in Louisiana?
Probable cause refers to the grounds a law enforcement agent has to issue a warrant or search your person or property. It is part of the Fourth Amendment, which protects individuals from illegal search and seizure. In short, law enforcement must have substantive evidence that a crime has been committed before they can arrest, search, or issue a warrant.
Probable cause can be difficult to determine in some cases. The Fourth Amendment does not directly define the term, which means sometimes probable cause is reliant on a subjective call made by law enforcement.
Examples of probable cause would be if an officer sees someone swerving on the road or driving with a missing taillight. They would then have legal recourse to pull the driver over. Another example would be an officer who smells marijuana on a person or in their vehicle, and then attempts to conduct a search.
Can a Criminal Defense Lawyer Challenge a Search Warrant?
In court of law, if probable cause cannot be established, then anything gathered in a search or seizure is considered illegal and not permissible as evidence. A criminal defense attorney may use this as a defense to challenge a search warrant. If they can prove that evidence was confiscated under illegal search and seizure, then they may be able to get that evidence thrown out from consideration in the case.
This defense can be used in drunk driving charges, for instance, wherein even if a person failed an intoxication check, and it can be shown that the officer did not have proper recourse to pull the person over in the first place, then the test itself is inadmissible as evidence, since it was obtained under illegal means.
How Long Does It Take For Police To Get a Search Warrant?
Search warrants must be reviewed on a case-by-case basis by a judge prior to approval. This means a search warrant can be issued anywhere from a few hours after the request, to days. It can depend on a number of factors like the time of the request, and the nature of the potential crime or evidence.
Typically, however, police can get a warrant within about three hours. You may be detained or required to stay put while law enforcement waits for the warrant.
In some parishes, state troopers will obtain a search warrant within minutes, via fax. This is usually done when a person is pulled over and suspected of driving drunk. If the individual refuses to take a drunk driving test, the trooper will call a judge and have them fax over a warrant immediately which then requires the individual by law to comply with the test.
When Can Police Conduct a Search Without a Warrant in Louisiana?
There are a few exemptions that allow law enforcement to conduct searches without a warrant.
The Plain View Doctrine
If evidence is sitting out in plain view for law enforcement to readily and easily see, then they may conduct a search and seizure. For example, if you are pulled over and there are drugs sitting on your dashboard, the cop may legally search your vehicle.
If the person agrees to allow law enforcement to search their person or property then the officer is legally allowed to do so. If you have nothing to hide, it may be in your best interest to consent to a search. Refusing a search may make police suspect that you are breaking the law or have something to hide, even if you are just protecting your privacy. However, it should also be noted that if you consent to a search, anything law enforcement finds may be confiscated and/or used against you in a court of law.
Search After an Arrest
If the police are making an arrest, they may conduct a concordant search and seizure without a warrant. In order to protect themselves, police can search for weapons on the person or property of a person they are arrested. They may also search for accomplices to the crime, or additional evidence which they fear could be destroyed.
Similar to search in concordance with an arrest, this exception allows for law enforcement to conduct a search without a warrant if they believe that a serious crime is being committed or that their own safety is being threatened. This exception is most often employed in extreme situations, such as individuals believe to be armed and dangerous, or looking to flee, or hostage situations, where waiting for a warrant could jeopardize lives and the safety of others.
What Items Can Be Confiscated?
Law enforcement may confiscate a person’s belongings for a number of reasons.
- Safe Keeping – When a person is arrested at a traffic stop or in public, police will confiscate any valuable objects they have on their person. They may also search your car for any valuables, to protect them from break-ins. Depending on where your car is located at the time of the traffic stop, they may have it towed or impounded.
- Evidence – Law enforcement will seize any items they believe to be connected with a crime. This could include things like money used to buy drugs, vehicles used in a crime, cellphones, weapons, and more. Other personal items may be taken as well, if law enforcement believes it may be useful for prosecution. For instance, if the perpetrator was seen wearing a distinctive hat, they may confiscate the hat as evidence.
- Contraband – Law enforcement will seize any illegal items, such as illegal drugs, unregistered weapons, counterfeit money, etc.
Will I Get My Belongings Back If They Have Been Taken In a Search and Seizure?
When police seize your personal belongings they are usually required to provide a receipt or itemized list of the things they took. Naturally, any illegal contraband will not be returned to you. Law enforcement will use it as evidence to show that a crime was committed, and then will likely destroy it.
Likewise, in many cases, items that are confiscated as evidence in connection with a crime—also known as forfeiture—will not be returned. For example, if the police confiscate a vehicle or cellphone believed to have been used for drug trafficking or prostitution, they will likely not return those items at the end of the investigation. They may sell or impound them.
However, if your items were confiscated for safe-keeping, or if you can show that your items were seized wrongly or illegally, you may be able to get them returned to you. Unfortunately, getting your possessions back can often be a long and complex process.
A New Orleans Criminal Defense Attorney Will Fight For You
If you have been arrested or charged with a crime, you need an experienced criminal defense lawyer on your side as soon as possible. An attorney can get you out of jail, begin collecting evidence and building your defense. They can assist in trying to get any confiscated items returned to you.
Give us a call at Bloom Legal today for a free consultation, and let us get to work protecting you and your rights.
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Posted by: Sarah Perrie