As a preliminary matter, it appears that the type of property you have described may not be seized unless 1 the property is described with particularity in the search warrant, or 2 the property falls within the plain view exception to the warrant requirement as evidence of crime lawfully encountered. In order for an article to be contraband and thus subject to forfeiture, there must be some nexus between the use of the property and the prohibited criminal conduct beyond remotely incidental use. For example, currency may be contraband if it is shown that there is a nexus between the currency and narcotics trafficking.
Persons having an interest in the property are entitled to basic due process rights, including reasonable notice and an opportunity to be heard, before their rights in the property can be cut off.
The trial court has the inherent power to fashion the necessary procedures and processes for the recovery of evidentiary items held in custodia legis. Finally, the disposition of personal property seized by a sheriff which is not claimed and is not forfeitable as contraband appears to be governed by s.
That section states that title to unclaimed evidence shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding. The agency may thereafter elect to either retain, transfer, donate, or sell the property. Sincerely, Robert A. Supreme Court in Arizona v. Hills , S. Ed2d In Hills , the Court held that a seizure based upon the plain view exception must be supported by probable cause. State , So. Metro-Dade Police Department , So.
In addition to certain guarantees provided by law, LegalZoom guarantees your satisfaction with our services and support. Because our company was created by experienced attorneys, we strive to be the best legal document service on the web. If you are not satisfied with our services, please contact us immediately and we will correct the situation, provide a refund or offer credit that can be used for future LegalZoom orders. But, what about in real life? Can you be searched without a warrant? Anyone who is familiar with the U.
Constitution would emphatically say no to this question, as the Fourth Amendment protects private citizens from unreasonable searches and seizures. The amendment reads:. Under the Fourth Amendment, police officers must obtain written permission from a court of law to legally search a person and his or her property and seize evidence while they are investigating possible criminal activity. And, as in the Law and Order case above, the exclusionary rule mandates that evidence obtained through illegal searches is not admissible in a court of law. However, many individuals under the pressure of the police may not be aware of this rule or their other rights under the Fourth Amendment.
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In addition, there are cases in which police can legally search without a warrant if probable cause is established or if consent is given by an individual. A warrant is a legal order signed by a judge authorizing the police to search a specific location and seize specific materials from that location at a specified time. For example, a warrant may specify that police can search Main Street for marijuana between the hours of a.
The police must convince the judge, using sworn statements, that they have probable cause or a reasonable belief that a crime has taken place, in order to receive a warrant to search a particular area for evidence of that crime. The police will provide their own evidence for the warrant and the suspect is not present when the warrant is issued. Once a warrant is obtained, the police can only search the location specified in the warrant, whether it is a home, a car, or a specific outside location.
For example, if a warrant specifies that the police are searching the backyard of a home, they cannot legally also search the home or vehicle of the individual. In addition, they must only search for what is specified in the warrant. There are times when police can perform a search without a warrant, and most searches actually do occur without warrants being issued. That is not to say the police can barge into your home and search it without a warrant; if there is a reasonable expectation of privacy and there is not probable cause, a search warrant is required.
However, if probable cause does occur, such as the suspect runs away, a gunshot is heard from another room in a home, or even when an individual makes a sudden movement, a search becomes legal without a warrant. Even with a reasonable expectation of privacy, the police can legally conduct a search without a warrant in situations in which certain exemptions apply. Exemption 1 — Consent: If an individual freely and voluntarily agrees to a search of his or her property, without being tricked or coerced into doing so, the police can search this property without a warrant.
Police do not have to inform you that you do, indeed, have the right to refuse a search, and individuals have been arrested and even sent to jail because they did not know they had the right to refuse search and seizure. If two or more people live at the same location, usually one tenant cannot consent to a search of areas owned by another tenant.
A tenant can, however, consent to a search of the common areas of a home, such as the living room or kitchen. A landlord is prohibited from giving consent to the search of his or her tenant's private belongings, and the Supreme Court has also ruled that an individual cannot consent to the search of a house on behalf of a spouse. An employer, however, can consent to a search of a company, which includes an employee's work area, but not an employee's personal belongings.
Exemption 2 — The Plain View Doctrine: Police officers can legally search an area and seize evidence if it is clearly visible. If the police see an illegal act occurring outside of your home, they may perform a search and seize evidence from your home without a search warrant. For example, if a police officer stops a driver for speeding and sees marijuana in the window, a search can be conducted without a warrant.
The police must still have probable cause, however, that the items are indeed illegal.http://eden.wecan-group.com/what-world-is-this-and-other-stories.php
Illegal Search and Seizure FAQs - FindLaw
If the steps outlined in this publication are followed, the company subjected to a raid will have some understanding of the conduct at issue—if not the persons potentially involved—and can use that understanding to develop an internal investigation plan. Instead of merely awaiting instructions or requests from the government, and instead of being content to try to read the tea leaves that government might offer to shed light on what is under investigation, a company should be determined to conduct its own investigation and quickly get ahead of the government in fact-gathering and analysis.
A company that gets a handle on the facts is generally much better positioned to take remedial action e. Search warrants are a tool used increasingly often in the white collar context. Execution of a search warrant can have a profound effect on a company by disrupting operations, depleting employee morale, and, in some cases, tarnishing the public image of the company.
Although it is impossible to prevent or completely eliminate the disruption associated with a search, preparation ahead of time can minimize the business disruption and place the company in the best possible legal position during and after the search.
How Police Obtain Search Warrants
These steps provide guidance regarding how to respond when a company is presented with a government search warrant. Step 1. Contact outside counsel. As soon as you learn that the government is executing a search warrant at your company, you should contact outside criminal counsel and request that the search be delayed until outside counsel arrives on site.
Although the government is under no obligation to wait for counsel's arrival once the warrant has been approved by the court, having criminal counsel present to observe and monitor the search in real time can be helpful in protecting the company's interests, especially with regard to confidential trade secrets and privileged materials. All interactions with the government should proceed through, or with the advice of, outside counsel. Remember that any statements you make to the government may be attributed to the company.
Step 2. Gather basic information about the agents and purpose of the investigation. Collect basic preliminary information about: i the purpose behind the search, ii the identity of the lead government agent, iii the names of other agents, iv the agency leading the investigation, and v the lead prosecutor. Step 3. Provide instructions to employees. Instruct all nonessential employees to leave the premises, but admonish departing employees not to take any materials out of the office or destroy or delete any paper or electronic files while the search is being executed.
Instruct all employees regarding their rights in connection with the government's investigation, including the right not to speak with government agents and the right to consult with company counsel prior to or during any interview. Step 4.
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Connect outside counsel with lead agent. Your outside criminal counsel should be conducting, or advising on, all communications with the government.
Search and seizure
Where possible, criminal counsel should negotiate reasonable procedures with the lead agent to ensure that the search will proceed smoothly and minimize any disruption to the business. Step 5. Analyze the search warrant and any "clean-up" subpoena.