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What Are My Fourth Amendment Rights During a Drug Charge Arrest

The amendments in the constitution were put in place to protect the citizens in cases of governmental overstep. The Founding Fathers wanted to avoid the control that the government had in England when they composed the Constitution. Even during your arrest, you have certain rights that cannot be violated by law enforcement. The Fourth Amendment protects those rights and should be exercised in the case of police misconduct.

What is the Fourth Amendment?

The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In short, this amendment establishes the home and property of the citizen as his ‘castle’ that may not be unlawfully disturbed by law enforcement. The citizen is protected by this amendment, from arbitrary arrests. It is the basis of search warrants, safety inspections, and stop-and-frisk, as well as forms of surveillance.

What is Protected by the Fourth Amendment?

The Fourth Amendment has put in place procedures for law enforcement to follow when making an arrest or performing a search and seizure. In following the Fourth Amendment guidelines, police must have a valid search warrant from a judge. The search warrant allows an officer of the law to come onto a property with reasonable suspicion of criminal activity. If anyone trespasses on a property without a search warrant, they will be up against the law themselves.

It is important to note that these restrictions set by the Fourth Amendment apply to federal law enforcement, state law enforcement, and localized police forces. They are all required to have a search warrant in order to enter your home or search your property. The search warrant may only be given if probable cause is present.

What is a Search Warrant?

By definition, a search warrant is permission given by an authority that allows a police officer to search personal property of an individual who is thought to have broken the law. There must be probable cause that the individual committed a crime otherwise the warrant is void.

The Exceptions to a Search Warrant

There are exceptions to the warrant requirement. It strongly depends on the specific property being searched among other circumstances.

Here are a few general exceptions to the rule:

· If you give voluntary consent to law enforcement searching your property, there is no need for them to get a search warrant.

· Lawful arrests often warrant enough suspicion for the police to argue they needed to search immediately without a warrant.

· Border searches or inspection searches.

· If probable cause is present, police will have the right to search a vehicle.

· Incriminating items that are in plain view while a search is happening.

· In cases of emergencies where an individual will cause harm to another party, law enforcement has a duty to do everything they can to prevent that harm.

· The stop and frisk of a detainee is permissible to look for weapons that may be used to harm an officer or others.

· Searches are also allowed when the individual has no expectation of privacy.

What Happens if a Search or Seizure is Done Unlawfully?

If a search or a seizure by an officer is done in an illegal manner, it is good news for the defendant. In California, if you have been searched and unlawfully arrested, it is grounds for the evidence that was collected during the search and seizure to be disregarded. In order to do this, penal code 1538.5 is put through as a pretrial motion.

Penal Code 1538.5 states that a court must suppress evidence that is a result of an unreasonable police search or without a warrant. In addition, the penal code allows the evidence to discarded if:

· The warrant was insufficient.

· Evidence obtained was outside the realm of the search warrant description.

· The courts issued a warrant without proper investigation to whether there was probable cause.

· The constitutional rights of the individual were violated during the search and seizure.

With a pretrial hearing, a defense lawyer can get any evidence obtained wrongfully, discarded from the case by using this penal code.

H Law Group Online

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