Skip to Content
Call Us Today! 312-436-0638

When is a Search and Seizure Illegal?


Anytime an individual has an encounter with law enforcement, he or she will likely feel incredibly intimidated and frightened by the situation, regardless if he or she did nothing wrong, especially if this is a first-time occurrence. It is crucial for every American citizen to understand his or her rights and to not allow those rights to be trampled upon. When it comes to search and seizures, the Fourth Amendment protects the the right of every citizen to be free from any unreasonable government intrusion into their property, businesses, homes, and perons, no matter where they are stopped.

However, under certain limited circumstances, the courts allow law enforcement officers to interfere with these rights. Read on to learn how the Fourth Amendment protects you and when it permits the police to interfere with these rights.

How the Fourth Amendment Protects You

Search and seizure protections cover:

  • A police officer’s physical seizure of an individual, whether it is a stop or an arrest
  • An officer searches a place or items to which a person has an expectation of privacy

The Fourth Amendment essentially safeguards individuals during searches or detentions, preventing the unlawful seizure of items that could be used as evidence in a criminal case. The amount of protection afforded individuals depends on a variety of factors, such as the reason for the suspect's detention.

Applying the Fourth Amendment

Below are some examples in which the Fourth Amendment provides constitutional protection to individuals:

  • Someone walking down the street is stopped for questioning.
  • Someone is pulled over for a small traffic violation and the officer searches the vehicle’s trunk.
  • An individual is arrested.
  • Law enforcement officers enter a person’s home and arrests him or her.
  • Law enforcement officers enter a person’s home to search for evidence.
  • Law enforcement officers enter a place of business in search of evidence of a crime.
  • Law enforcement officers confiscate a person’s vehicle or personal property, placing it under police control.
  • Under these circumstances, a police officer generally cannot search or seize a person or his or her property unless that officer has one of the following:
  • A valid search or arrest warrant
  • Probable cause, or reason to believe the person in question committed a crime

When Law Enforcement Violates Your Fourth Amendment Rights 

If a law enforcement officer violates a person’s constitutional rights, and the search is considered illegal or unlawful, any evidence that was obtained from it will almost certainly be thrown out of any criminal case against the individual whose rights were violated. Examples of this include:

An arrest was made that violated the Fourth Amendment because it was neither supported by probable cause nor was there a valid search warrant. In this case, evidence acquired from this search would be inadmissible.

Law enforcement officers searched a home in violation of the homeowner’s Fourth Amendment rights. A search warrant was not issued and there were no special circumstances or probable cause to justify the search. All evidence secured through this illegal search would not be used in court.

When Are Search Warrants Not Required

There are limited circumstances in which law enforcement officers might be able to perform a search and seizure without a warrant. These are examples in which search warrants are not required:

Consent Was Given: If law enforcement officers show up at your home, ask if they can come inside to perform a search, and you consent to the search, there is no need for them to have a warrant.

Emergency: If there is an emergency situation, law enforcement officers might not need a search warrant. For example, if law enforcement officers are in pursuit of an armed suspect who disappeared into a small neighborhood, they might not need a search warrant to search the homes in the area since the residents are all at risk.

Searches Incident to Arrest: If an individual was arrested by law enforcement officers, those officers are able to conduct a search of the person and his or her immediate surroundings for weapons that might pose a danger to others.

Plain View: If evidence is in plain view where law enforcement officers are legally authorized to be present, they do not need a search warrant to seize it.

Criminal Defense Attorney in Chicago

If you were recently arrested and are facing criminal charges that you believe are based on an illegal search or seizure, you will need a skilled and experienced criminal defense attorney on your side. At the Law Office of Steven Fine, our Chicago criminal defense team is ready to come to your aid at any time to provide the thorough and aggressive legal representation you need to protect your rights and future.

Contact our office today at (312) 436-0638 to get the 24/7 help you need!