Illegal searches and Seizures: frequently Asked Questions

Here are the most frequently asked questions about your rights in the course of the police search you, your home or your car.

At what point is it considered that the police “recorded” during an investigation?

In general, a court will make two inquiries to determine whether an investigation of the police became a record. In the first place, the court will ask if the person whose home was either being investigated/recorded expected a degree of privacy. The court then asks whether that expectation of privacy was reasonable. This question is answered in the light of the society, that is to say that the question revolves around whether society would recognize some sort of privacy in the case in question.

For a research to become a record, a court must determine that the research invaded or meddled in the “legitimate expectation of privacy” of a person. This is determined when the response to the two previous questions is in the affirmative. If any of these questions can be answered in a negative way, that is to say, the registered person did not have anything to keep private or the expectation of privacy was not reasonable, then there was no record.

What my private property is really private?

The goods inside your home or on your property is generally considered private. If the police must enter your property to take a look at the tests or other property that you want to use in the court, you need a search warrant to do so. However, there are certain situations, such as to prevent a suspect from destroying evidence, in which case the police can search and seize your property in your home without a court order. This is because the situation in itself requires the prompt intervention of the police.

Now that we have the general rule, how does this affect? In most situations, law enforcement officials are allowed to take photographs from the air above your house or spying on your conversations in order to gather enough information to obtain a court order. However, while listening to conversations, the police cannot use high-tech equipment in any of these circumstances without converting listening on a search and seizure illegal.

In general terms, the more sophisticated the team is listening or photography, the more likely it is that the police must obtain a warrant before carrying out the registry. However, if you consent to an officer to search your home, you waive any right to object to a search without warrant. Also, if an officer is on your property for a legitimate reason (perhaps chasing a thief, this may seize any contraband that is in plain sight, even without a warrant.

The police told me they have a warrant, what is, and what he had to do to get it?

A search warrant is a court order issued by a judge or magistrate that gives permission and authorizes the police or other law enforcement officers to carry out a registration of a place or person and seize any evidence of a criminal offence. The warrant is addressed to the person subject to the registration or to the person that owns the property subject to the registration and informs the addressee that the judge issuing the order has been considered reasonably likely to be determined evidence there.

In general terms, police officers or other law enforcement officers must apply for a search warrant before conducting the search of the person or property in question. If you perform a search without a warrant is presumed to be unreasonable and is likely to be considered a search and seizure illegal. If you object to any such registration, the police or the parties that were requested to explain and justify their reasons for carrying out the registration, in addition to explain why they issued a warrant before doing so.

Normally, the police must make a minimal demonstration before the judge who issues the order of registration for this take the decision to grant it. The police must show the judge:

  • that there is probable cause of the commission of an offence; and
  • that is more than likely that the evidence or contraband linked to that crime was located in a particular place on the real property or person in question.

In order to demonstrate this to the judge, the police shall provide information that is based on their own observations or the observations of others, including informants. However, if the police is based solely on the observations of others, including informants, to request a warrant, the police must be able to prove to the judge that the information is reliable. This ranges from the corroboration by police of the observations second-hand to the history of reliable observations of an informant known.

What are the powers obtained by the police with a warrant?

A search warrant gives the police the legal authority to enter a building without the permission of the owner to register it in search of the evidence detailed in the warrant in the places authorized by the order. For example, if the search warrant allows the police to search for illegal drugs in the bathroom of a home, you should limit your search to the bathroom.

However, there are certain exceptions to this rule on the search warrant that allowed police to conduct searches more broad than what is allowed by the order of registration. In general, the police may search beyond the scope of the warrant in order to ensure their own safety and the safety of others. Also, the police can expand your search to prevent the destruction of evidence, to search for evidence beyond the scope of the order the original log because your initial registration revealed that there may be more evidence in other places of the property, or to find more evidence in function of what is observed with the naked eye.

Some examples may clarify these points. If the police have obtained an order to register the garage of a house, you can walk through the house to reach the garage and take out your registry. If on your way to the garage to search for drugs, the police hear the discharge of a toilet on the floor above, you can extend your registration to review the bathrooms in search of illegal drugs which probably have been thrown in the toilet. Another example is a registration of a dining room that can be expanded to the kitchen if police hear that you are loading a weapon next to the refrigerator.

Finally, it should be noted that the police may seize evidence that is in plain view if the police are there for a legitimate reason. For example, if you way to register the garage, the police observed four bags of marijuana on the coffee table, you can seize the drugs.

How search warrants are required for all records?

As can be inferred from the foregoing, the answer to this question is that not all the records are illegal without a warrant. Here are some of the main examples in which police or other law enforcement officers do not need a search warrant to carry one out:

  • Consent. If the police knocks on your door and asks if she can go to search for drugs and you consent, then the police do not need a warrant.
  • Emergency. If the police record is in an emergency situation, it may not need a search warrant. For example, if the police are in search of an armed suspect that has disappeared into a small neighborhood, may not need a search warrant to register the house because the suspect is putting the residents at risk.
  • Child records to an arrest. After a person is arrested by the police, the law enforcement officials may conduct a search of your person and your immediate surroundings for weapons that might be dangerous to the officers or to third parties.
  • Simple vista. The police do not need a search warrant to seize evidence that is in plain view where the police are legally authorized to be.

My tenant/roommate of the apartment gave permission to police to search my belongings, has been a search and seizure illegal?

In general terms, the person in charge of an area has the power to grant permission to police to search that area. Then, if you share an apartment with a roommate, this last probably has the faculty of granting permission to police to search common areas of the apartment such as the dining room or the kitchen, but not your personal room.

In the same way, your landlord can not give permission to the police to record any part of your apartment, except communal areas are common, such as a laundry room/drying in a building. However, you must remember that if the police believe that the registration constitutes an emergency, it is not considered a search and seizure illegal even though you register your department without permission.

During a traffic control, how the police can search my car and cachearme?

In general, the police are allowed to register and to cache it during a traffic control stop it if you have a reasonable suspicion that you are armed. This is not a search and seizure illegal. In addition to cache for weapons, the police can also cache it in search of contraband, such as drugs. A recent decision of the Supreme Court changed the laws that allow a police officer to register a car after a traffic control. The Supreme Court determined that a record of the passenger compartment of an automobile is permitted only if:

  • the driver/arrestee is within reaching distance of the passenger compartment at the time of registration (which means that the police cannot search your car if you are arrested in the back of a car patrol); or
  • it is reasonable to believe the vehicle contains evidence of the offense for which arrested (which means that the police cannot search your car for weapons unless they arrested for a violent crime or for possession of illegal weapons).

Was towed and confiscated my car, what the police can register it?

In a nutshell, yes. If the police have towed and impounded your car, you have the ability to register you. This record may be as complete as what you want the police, and most likely will include the opening of the locked compartments or boxes present in your car. No matter the reason for which they have towed and impounded your car, it could be something as simple as a parking ticket or as serious as the theft of an automobile. Regardless of that, the police can search your car if they have been confiscated.

However, the police cannot tow and impound your car with the sole purpose of registering it. The police must follow strict procedures when it comes to this type of records.