Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

‘Search and Seizure’

Stop and Frisk

In the US, human right is the thread that holds the fabric of America’s diverse identity. One very important right: to be free from unreasonable search and seizure. The Fourth Amendment of the United States Constitution protects this right. In addition to protecting the right of a person to unreasonable search and seizure, the Fourth Amendment also extends this right to homes, cars, etc. belonging to an American citizen. The bottom line of this right is to ensure that the government and its officials can only enter the premises of an individual when they meet any of the following conditions: Obtains consent from the homeowner Government official has probable cause Government officer obtains a warrant signed by a magistrate based on probable cause If exigent circumstances exist “Stop and Frisk” and Fourth Amendment Protections The protections accorded to homes and personal effects are also binding on our bodies. Thus, our bodies may not be searched or seized/arrested/incarcerated by the government or officials. However, as realities evolved, the law loosened to permit law enforcement officials to effect searches and seizures on people, especially when such action… Read More

Search & Seizure | Fourth Amendment

Search & Seizure The United States was founded on personal liberties. When America’s Founding Fathers drafted the Constitution, they sought to protect the people from a villainous government. The Fourth Amendment allows us to live free from unreasonable, general searches performed by law enforcement officers and their agents. The United States Supreme Court has recognized the exclusionary rule as a potential remedy to defendants for evidence obtained by an unreasonable search or seizure. Under the exclusionary rule, the prosecution will not be able to use that illegally seized evidence against you at trial. Further, if illegally seized evidence leads law enforcement to additional evidence, the additional evidence is also subject to exclusion. The additional evidence is said to be the “fruit of the poisonous tree.” Essentially, the law will not allow the prosecution to benefit from police misconduct. The Court has reiterated many times that society pays a heavy fine when the exclusionary rule is invoked; however the need to discourage law enforcement from acting in a tyrannical manner is paramount. Because the exclusionary rule was designed to punish and discourage police misconduct, when an… Read More

Search And Seizure | Appeals Court Decision

The Search and Seizure Law | When Does It Apply? The Fourth Amendment of the Constitution protects its citizens by placing limits on the power of law enforcement to search people and their property, seize objects, or make arrests. These checks and balances are put in place to ensure that we as American citizens have the right to a certain degree of privacy. The Fourth Amendment protects us against any unreasonable searches and seizures by the government, both state and federal law enforcement. If there is probable cause of a crime committed, or a Judge has issued a warrant, police may override your right to privacy and conduct a search of you or your property. As long as an individual has a legitimate expectation to privacy, the Fourth Amendment applies and is there to protect you. Unfortunately, the meaning of what is written in the constitution and it’s amendments, is up to interpretation. Unreasonable, and legitimate expectation to privacy can mean completely different things to two individuals. This is where the important role of the judicial branch of the government comes in; to interpret the… Read More

Mistaken Police Officer

Mistaken Police Officer Now An Exception to Unreasonable Search The United States Supreme Court has ruled that a police officers good faith reasonable mistake on the law does not run afoul of the 4th Amendment to the constitution that bans unreasonable searches and seizures. In Heien v. North Carolina, the Court in a 8-1 decision written by Chief Justice Roberts that searches and seizures based on an officer’s reasonable misunderstanding of the facts has been permissible for a some time. Roberts stated that same reasoning should apply to mistaken interpretations of the law. In a case from North Carolina based on a 2009 traffic stop from a broken brake light, the court expanded further into the erosion of our fourth Amendment protections of civil liberties. A police officer pulled a car over for a broken brake light not realizing the state law allowed only a single working light, which this car had. Sgt. Matt Darisse conducted the traffic stop of the vehicle that Nicholas Hein had been sleeping in the back seat as his friend drove. Hein, who was the cars owner, agreed to a… Read More