An arrest, search and seizure can be an unsettling time, particularly when you’re not sure how your case is going to go. It can be harrowing if you don’t know your rights or if an attorney will even be able to fight for your freedom. Not all evidence is equal in the eyes of the law though, and how incriminating items are processed or whether your rights are violated are key in the outcome of your situation.
There are many situations and places in which search and seizure can occur. It can happen in your home, car, a public place, or a friend’s home. The law varies slightly based on your location and your actions.
You do have rights. It’s important to be aware of your rights during an arrest.
When Can I Be Legally Be Searched?
The law provides protection from unreasonable intrusion and upholds privacy. The Fourth Amendment to the U.S. Constitution provides “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.
The Fourth Amendment allows searches and seizures in two types of situations (1) the police have probable cause in the form of facts or evidence that you’ve got possession of something illegal, or (2) the circumstances elicit a search and seizure and a warrant is not required.
It does not protect against all searches of course, but is a baseline upon which the law needs to show respect.
Police usually need a warrant to search your home or person, but there are exceptions. They need to have some evidence, called probable cause, before they can search your vehicle. There must be some statable facts that led them to believe you might have been in possession of something illegal.
These facts can’t be just a suspicion. For example, they can include the sight or smell of drugs or admission of guilt. Included under the probable cause umbrella is if there is the presence of a police drug dog which smells drugs; they can then conduct a search. A random traffic stop is not evidence enough.
A solid, experienced attorney will know the intricacies of what the police need to uphold on their end in order for the arrest to be legitimate.
It is legal for them to ask for access to your phone or other electronic devices. They wouldn’t need a search warrant for that. You have the right not to comply.
If you were arrested, they aren’t legally able to check out the data stored inside the phone without a warrant. If that situation occurred at your home and they had a search warrant, the situation would be different.
There are special circumstances in which the police don’t require a warrant to gain possession of your electronic devices. Those times include:
- When there is probable cause that evidence exists on your device when that device or information is foreseeably going to be eliminated or destroyed.
- Your location- you’re at an international border.
- Another person can give them access, such as someone you live with providing police access via shared permissions.
Summary: Generally police need a warrant or must have probable cause before searching your person or car. You have the right to not agree to searches in some circumstances.
Do I Have Rights During An Illegal Arrest, Search And Seizure?
If police conduct an illegal search and seizure, evidence can become inadmissible in court. The right attorney will recognize when that is the case and use it to fight for your case. As in most situations, using your ‘right to remain silent’ is a smart course of action. Using that right during an arrest gives you the option to not give up passwords or encryption codes to unlock your devices, if they are being searched or confiscated.
If your phone or computer was seized in an illegal manner, the seizure can be contested. Your Texas criminal defense attorney can help you file a motion to have it returned.
When legally taken, it may be kept for some time as evidence.
Remaining silent is referred to as “pleading the fifth” or the Fifth Amendment to the U.S. Constitution. It protects people from incriminating themselves in a heated moment, such as arrest.
When being searched, don’t physically resist, but don’t consent to any searches. If an officer asks for your permission to search, you don’t need to give it. If he is asking, most likely there is not yet the standard of ‘probable cause.’
Evidence that is the result of an illegal search or arrest may not be able to be pursued by the prosecution. As a criminal defendant, it is important to learn the rules and your rights.
Summary: You should remain calm even during an illegal search. With the right attorney, evidence can become inadmissible.
What Should I Do If I Am Involved In An Arrest, Search And Seizure?
When you are initially detained, it is acceptable to ask if you are free to go. Aside from that, silence is your most important right to assert. This is not just for the purpose of avoiding incriminating yourself. It is also so that no one can take your words out of context or point out any inconsistencies in your story.
Even refusing to verbally comply with certain searches can be done in a compliant manner. Since you are being filmed, it’s best to remain polite and follow police directions. If and when a jury sees this video, it will be in your best interest to show agreeable behavior.
Don’t consent to a search even if you have nothing to hide. Follow directions, but you have the right to not verbally agree to a search.
Wait to answer questions until you have a reputable attorney. Assert this right politely when questions start and until they stop. An attorney can determine the appropriate course of action and counsel you how best to face the questions coming your way.
Summary: Even under dire circumstances, politely using your right to remain silent and wait until your attorney arrives before answering questions is best.
Call The Office Of Vinas And Graham And Learn Your Right During An Arrest
Even if you are arrested illegally in an arrest, search and seizure, it is important to remain calm and not resist the arrest. Your prospects will be that much more favorable based on your actions. You have the right to remain silent, although you do need to give your name, date of birth and address if you are detained in public.
You have the right to a fair trial. This means you may be represented by an attorney, call witnesses and confront government witnesses via cross-examination.
If knowing your rights during an arrest and what is legal during a search and seizure seems complicated, that’s because hiring an excellent attorney is your best bet for navigating the nuances of the law.
Summary: You have rights, such as the right to an attorney and to a fair trial. Hiring a reputable Texas criminal attorney is your best defense.
Abiding by certain staples is crucial, such as politely asserting that you choose to remain silent and will wait to answer questions when your attorney is present. Aside from that, choosing an experienced Texas criminal attorney will be the best choice you can make. Call us today for a free consultation on your case at 713-229-9992.
1210 West Clay
Suite 12
Houston, TX 77019
