If law enforcement agencies have breached your Fourth Amendment rights, any evidence they have found which is used to support a prosecution against you may be invalid. A criminal defense lawyer can use an unlawful breach of your Fourth Amendment rights to have a criminal charge against you thrown out in court or at least can use the breach to help your case if it goes to trial.
What is the Fourth Amendment?
The Fourth Amendment to the U.S. Constitution protects you or your property and other assets from being searched in an “unreasonable” way. Police or other law enforcement agencies, state or federal, cannot just search your body, your car, home or boat or any other property without good reason. They must have reasonable grounds for suspecting that you have committed a crime, about to commit a crime, or are in some way associated with a crime and must obtain a search warrant before carrying out such a search.
What can the police do to get around the Fourth Amendment?
Despite the protection the Fourth Amendment gives to people, there are still circumstances in which police or other law enforcers can legally search you and / or search or seize your property. You are not protected by the Fourth Amendment if police have ‘probable cause’ that you have committed a crime or are about to commit a crime and are able to obtain a search warrant from a judge. They must have applied for a search warrant in writing with a description of what they want to search. You have the right to ask to see the search warrant and read it before permitting police officers to carry put the search.
Police can also search you and your property if you fail to say “no” if asked. Take an example. Say you are walking down a city street in Anchorage. A cop comes up to you and asks you your name and where you are going. You must give them your name and any other information that identifies you, but you do not have to say anything else unless you have been arrested. If the cop asks to look inside a bag you are carrying, you don’t have to let them unless they have a search warrant. However, if you consent to a search, then they are quite legally allowed to do so and anything they find in the bag that could incriminate you can quite legally be used as evidence. Note that police officers routinely use voice recorders to record a conversation, so there wouldn’t be any point in denying that you had allowed the officer to search your bag if you had actually done just that.
More about probable cause
Like a lot of legal terms, ‘probable cause’ takes a bit of explaining. Some examples might help. If you have been pulled over by the police while driving, the officer may not have any particular reason to search you but is just making a random check on your license or registration. If they smell marijuana in the car, see an empty can of alcohol or some guns on the back seat, then they may have ‘probable cause’ to suspect that you have committed a crime or about to commit a crime. They then have the right to search you and your car without seeking a search warrant.
In other circumstances, police may seek to obtain a search warrant because they have probable cause that you have committed a crime based on other information. Perhaps there was an informant, or there was a member of the public who gave them information that led to suspicion that you had done something illegal.
What you should do if you think your Fourth Amendment rights have been breached
If you have been stopped and searched, or your car, home or other property has been searched by law enforcers and this was done without your consent and without a warrant you need to remain calm and polite, even if you are upset and agitated. Fleeing, resisting arrest or arguing will not help you at all. The best advice is to try and remember everything that has happened, what was said by you and the officers carrying out the search. If you are arrested, the officer must read you your Miranda rights. You should be given the opportunity to call an attorney. You should tell the attorney everything about the search and arrest if that is what has happened. The attorney will be able to tell whether the officers did anything illegal, or whether they were justified under Alaska law to carry out the search and arrest you under suspicion that an arrest had taken place. If your Fourth Amendment rights have been breached, then generally any evidence obtained through an illegal search or because you were not read your Miranda rights may be declared inadmissible.
An experienced and skillful criminal defense attorney can use a breach of the Fourth Amendment to have your charges dismissed. In Anchorage, contact the Law Office of Dattan Scott Dattan as soon as you have been arrested. He will fight to represent you in court. Call Dattan Scott Dattan’s office in Anchorage at 907-276–8008.