San Jose Criminal Law Office

Question: When is a search illegal?

Answer: The Fourth Amendment to the U.S. Constitution guarantees a right to be free from unreasonable searches and seizures. If the officer has a warrant, he can generally search. However, he may be limited by the terms of the warrant itself as to whether the actual search is lawful. There are also issues that arise as to whether the judge should have issued the warrant in the first place. These are complicated legal challenges. Most often, a search has occurred without a warrant. When someone is not on parole or probation, a search cannot occur if it is "unreasonable". If an officer sees contraband in plain sight, it is generally a legal search, unless the officer is not lawfully in the area where he sees the contraband. Sometimes "exigent circumstances" allow a search that would normally not occur. For example, if someone calls the police to report a crime occurring in your home, it may or may not be lawful for the police to enter, depending on the source of the information and the seriousness of the situation. These are not simple matters to sort out on your own. An attorney should be consulted to advise you what course to take regarding a potential challenge to the search.

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