What constitutes an illegal search and seizure of your home? 42 Answers as of July 03, 2013

When the police conduct a search of your home aren't you allowed to be witness to the search? Even if you are already placed into custody?

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Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
No, you are not necessarily allowed to bepresent for the search. It is legal if there is a search warrant or the search is incident to a lawful arrest. Speak to a criminal defense lawyer for further details. Good luck.
Answer Applies to: New York
Replied: 7/19/2011
Lacy Fields, Attorney at Law, LLC
Lacy Fields, Attorney at Law, LLC | Lacy Fields
No, there is no such rule.
Answer Applies to: Missouri
Replied: 7/18/2011
Castleberry & Elison
Castleberry & Elison | Peter Castleberry
Lawyers have been asking themselves that exact question ever since the framers drafted the United States Constitution. The answer is constantly changing. Generally speaking, however, a person does not have a constitutional right to witness a government search.
Answer Applies to: Oregon
Replied: 7/18/2011
Michael Breczinski
Michael Breczinski | Michael Breczinski
No they do not have to let you view the search. They have to let you view the search warrant and you can challenge the legality of the warrant in court.
Answer Applies to: Michigan
Replied: 7/18/2011
Goolsby Law Office
Goolsby Law Office | Richard Goolsby
We are criminal lawyers in Augusta, Georgia. Generally, when executing a search warrant, the police often can justify not allowing a person to be present during the search, for security reasons. We recommend you retain a criminal lawyer to discuss all your rights and options. Good luck!
Answer Applies to: Georgia
Replied: 7/15/2011
    Edward  D. Dowling IV Attorney at Law
    Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
    However, I would need further details to answer properly since it depends upon all the facts and circumstances.
    Answer Applies to: New York
    Replied: 7/3/2013
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    In general, police cannot search your home without a search warrant. If they did have a warrant, they do not have to let you watch the search.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    Search and seizure of a home is a complicated issue. Normally, law enforcement must have either a search warrant or permission to search. There are exceptions such as the emergency doctrine where they feel a life is in danger or where there is no opportunity to secure a search warrant as the evidence could be spoiled and the person with the eveidence is pursed to the location, or there is a warrant for a person who they have reason to believe is in the house, and there are many other exceptions.With a valid search warrant or consent, law enforcement is allowed to search your home and every location within your home where the illegal matter could be located or secured. You do not have an absolute right to be present when the search warrant is executed or the search is conducted.If your home is searched illegally any evidence located within your home can be suppressed.
    Answer Applies to: Alabama
    Replied: 7/15/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    The 4th amendment to the US Constitution has been written about in thousands of cases. There are all sorts of things that make a search illegal. The facts are always a little different. If you are in custody and the police have a warrant to search then no you are not allowed or required to be present during the search. There may be other issues and a good defense lawyer will be fully aware of the various issues involving search and seizure law.
    Answer Applies to: New Hampshire
    Replied: 7/15/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    illegal= without a warrant, without consent, usually they just ransack the whole thing. Get a lawyer.
    Answer Applies to: Florida
    Replied: 7/15/2011
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    No. There is no right to follow the police around while they do the search. You are often in the police car while the search is going on. You should hire an attorney and file a motion to suppress the evidence if the search might be illegal.
    Answer Applies to: Alabama
    Replied: 7/15/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    Any search must be conducted within constitutional bounds. That does not mean that you can be present while the search takes place. To fully answer this question it would be necessary to know the facts leading up to the search, i.e. was there a search warrant, was it incidental to arrest. The facts of the search should be reviewed with a competent criminal defense attorney to see if there are issues that could lead to a motion to quash evidence.
    Answer Applies to: Michigan
    Replied: 7/15/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    There is no right for a person to witness the search of their own home. The Officers must have a warrant or consent to search and must leave an inventory of the items taken.
    Answer Applies to: Alabama
    Replied: 7/15/2011
    Attorney at Law
    Attorney at Law | Michael J. Kennedy
    If the cops have grounds to search, by warrant [nothing you can do about it], consent [always a stupid thing to do], exigency [rarely properly exists], they should allow you to be there, but you do not have a right to be there, and they are not obligated to let you be there.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You ask if you can be a witness to the search of your home. If the police have a valid search warrant they can search your home and arrest you if they find contraband. They do not have to allow you to watch what hey are doing and you may be in custody when they are conducting the search. Almost all search warrants are for drugs as a result of an informant who has told a judge that they recently bought drugs from that house.
    Answer Applies to: New York
    Replied: 7/15/2011
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    There is no legal requirement that you be allowed to witness the search. However, there is an enormous body of law on what constitutes an illegal search in violation of your Constitutional rights. If you are in this situation, you need to hire the very best criminal defense attorney you can afford.
    Answer Applies to: Missouri
    Replied: 7/15/2011
    Law Offices of Marshall Tauber
    Law Offices of Marshall Tauber | Marshall Tauber
    The question you raise turns on whether or not the police had a valid search warrant or had a valid reason to search-incident to arrest, or if the police entry into the house was allowed by consent of the homeowner or legal tenant of the property. If they had a valid search warrant or were searching after having probable cause to arrest someone who resided or was in the home then they can search without the residents presentif someone opened the door and let the cops in then, it depends on their reason for coming to the door in the first place. You need a very well qualified attorney to represent you.
    Answer Applies to: Michigan
    Replied: 7/15/2011
    Smith & John
    Smith & John | Kenneth Craig Smith, Jr.
    You do not have a right to witness the search but you are entitled to receive a list of all items seized.
    Answer Applies to: Louisiana
    Replied: 7/15/2011
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    No, They could arrest you and haul your ass to jail and then execute the search. An illegal search is when the police have NO warrant, and have NO permission to be in your house. You should contact an attorney if they found something.
    Answer Applies to: Maine
    Replied: 7/15/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    Your presence is not required. The police can search based on a warrant, consent, probable cause based on something illegal in plain view, or exigent (kind of emergency) circumstances.
    Answer Applies to: Colorado
    Replied: 7/15/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    The question of what constitutes and illegal search of your home requires FAR too much to answer. You would need to provide details regarding the hows & whys the cops searched and have lawyers evaluate whether it was legal. As for you watching, absolutely not. They do not have to even have you there when they search. The only thing they are supposed to do is leave a copy of the inventory of items they seize.
    Answer Applies to: Texas
    Replied: 7/15/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    A search of your home without a warrant is presumably illegal unless the police fulfill an exception to the warrant requirement. This can include circumstances such as evading the police by running into your home or if getting a warrant would risk losing valuable evidence. You do not have the right to observe the police as they search your home but the warrant must be specific as to what the police are looking for. Also, they cannot search areas where the evidence wouldn't be. For example, if the police are looking for a shotgun, they cannot search small drawers or other areas where the shogun could not fit.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    Volumes have been written on search and seizure. You are not entitled to witness a warrant based search of your home.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    The police do not have to allow you to witness a search if they have a warrant. The warrant authorizes the police to search even if you are not present
    Answer Applies to: Connecticut
    Replied: 7/15/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    No, you are not allowed to witness the search.
    Answer Applies to: Michigan
    Replied: 7/15/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    You do not have to witness the search. There are lots of incidents where the police have a valid search warrant and the person isn't there at the time or not at home. They don't have to wait until you come back. If they have a warrant, they can search with or without you being there or with or without you witnessing it. Have an attorney review the matter to make sure they had a valid warrant or a valid warrant exception.
    Answer Applies to: Michigan
    Replied: 7/15/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    There is no law that the police must allow you to observe how they search your house. Most often police will have you placed in custody in a police car while they search. They will claim it is for their safety but of course they do not want witnesses to how they search. Often the police will ransack a home when there is no lawful excuse for them doing so. Whether the search of your home was legal will depend upon many factual issues. You need to contact an experienced criminal defense law firm who can review the facts of your case with you and decide if the search was in fact unlawful. If a court finds the search unlawful then the evidence could be thrown out of court against you.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    No. There's no law that says that the police have to let you witness a search of your home.
    Answer Applies to: New York
    Replied: 7/15/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    A search without a valid search warrant would be the first indication of an illegal search. There could be a search without a warrant if there are excepting circumstances. A court hearing would need to be held to determine if the search was illegal.
    Answer Applies to: Kansas
    Replied: 7/15/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Christopher Lee
    No, so long as they have a validly issued and signed warrant. A witness is not necessary for the search to be valid.
    Answer Applies to: California
    Replied: 7/15/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    You have no right to observe, especially if in custody. Illegal would be without consent with no warrant, or with a defective warrant. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments, for evidence suppression or other motions, or at trial. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 7/15/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Every search without a warrant is presumed to be unreasonable and unlawful unless it falls within certain exceptions of the Warrant Requirement. When a valid warrant is present, the police can do whatever they need to do to ensure you and they are safe including handcuffing you, placing you in a police vehicle and excluding you from the search area. Naturally, your attorney should argue that point to the jury. You weren't present when the illegal substance or weapon was found so it may have been planted. The most important thing here is that you remain silent and ask for an attorney. Ideally you will hire one. If not, the court will appoint one at no cost to defend you. There are a lot of people in prison because they ran their mouths and wanted to "tell their side of the story" to the police. Don't do it! People have been executed because they didn't ask for an attorney. Ask for a lawyer early and often and hire one if you can.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    The police probably have a search warrant signed off on by the judge. This would make any search legal. The other option is if the home owner allows the police officer access to the home without a search warrant. This search would be by consent. No, you do not necessarily have the right to be present, especially if you have been arrested and taken into custody.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    No, you do not have to be allowed to be a witness to the search. However, the search has to be incidental to a lawful arrest, unless there is a warrant or you consented. In other words, if you are being arrested for domestic violence, searching for drugs would not constitute as "incidental to the arrest" for domestic violence, because the two have no relation to one another.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    No - there is no requirement that you be present for the search to be legal. What will matter is whether they had a warrant or an exception and probable cause or consent. Discuss the details with your attorney to see if there are other search issues in your case.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    Generally you are not allowed to witness the search. The police usually will not allow any one not connected with law enforcement present for the search for officer safety reasons. Often the police will video tape the search however.
    Answer Applies to: Montana
    Replied: 7/15/2011
    Law Office of James E. Smith
    Law Office of James E. Smith | James Smith
    As long as the police conduct a reasonable search within the scope of the lawful warrant they do not have to let the homeowner or tenant watch.
    Answer Applies to: Nevada
    Replied: 7/15/2011
    Law Offices of Sean Logue
    Law Offices of Sean Logue | Sean Logue
    The police are only allowed to search your home if they haver permission, a search warrant, or under limited circumstances like following a suspect, incident to an arrest, or upon belief evidence is being destroyed.
    Answer Applies to: Pennsylvania
    Replied: 7/15/2011
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