You can protect your important legal rights by knowing the basic rules that apply to police searches. Evidence seized in law enforcement searches is a primary resource that prosecutors use in attempting to show the commission of a crime. On account of provisions in the United States Constitution, Nevada statutes, and federal and state court decisions, significant restrictions apply to police searches. In some circumstances, courts even prohibit prosecutors from using evidence obtained in an illegal search.
At The Gersten Law Firm, criminal defense is a primary focus of our practice. Experienced Las Vegas criminal defense attorney Joseph Gersten always meticulously analyzes police search activity to look for signs of illegality. He aggressively defends clients, using his unique skills, background, and knowledge. If you face criminal charges in Las Vegas or the surrounding areas, we welcome you to contact us for a free initial consultation and case evaluation.
Our discussion about your rights relating to police searches begins with the most important rule that you need to remember: You should never give consent to allowing law enforcement to search your vehicle, home, or person. If you give consent, you are probably giving up a primary basis for objecting to the legality of the search.
Giving consent means affirmatively, verbally (or in writing) allowing the police to conduct a search. That is very different from allowing them to conduct a search after they tell you that they have a warrant or other justification for the search. In that situation, the best approach generally is to make it clear that you do not consent to the search, but then allow them to conduct the search.
Obstructing a search when the police have a warrant or other basis can get you into more serious trouble. After you explain that you are refusing consent, say nothing more at all and exercise your right to remain silent and speak to an attorney.
The Fourth Amendment to United States Constitution sets out the basis for evaluating the legality or illegality of police searches. It 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.
This provision establishes the legal basis for searches and seizure of evidence found during a search. Unreasonable searches are prohibited. Probable cause is necessary to obtain a warrant for a search.
For probable cause to exist, a police officer must have a reasonable suspicion that a law has been or is about to be violated. The suspicion must be based on facts, such as observations, odors, viewable evidence, or even a spontaneous statement or confession. A mere intuitive hunch is insufficient.
Even when probable cause exists, most police searches require a warrant. However, under court decisions interpreting the Constitutional provision, there are exceptions. It can be complex to apply them in specific circumstances, but generally the exceptions include:
The law treats vehicle searches somewhat differently from other searches, primarily because of the mobility of a vehicle. Generally, there are four circumstances in which the police can search a vehicle in Nevada:
While these are the general rules that apply to police searches, application of the rules to a specific situation requires complex legal analysis. If you experience a police search, you need to speak with an experienced criminal defense attorney to find out whether the legality of the search is questionable.
The fact that police obtain a warrant for a search does not automatically mean the search meets all the legal requirements. There are a number of reasons that a warrant can be invalid — and a search conducted pursuant to an invalid warrant is illegal.
Even when a search warrant is valid, a search may be illegal if it is conducted in a way that does not conform to the terms of the warrant issued by the court. In addition, if police conduct a search without a warrant in reliance on one of the exceptions explained above, a skillful criminal defense lawyer can attack the underlying circumstances and justification for the search.
If you face a criminal charged based on evidence obtained in any type of police search, it is essential to talk to an experienced criminal defense attorney about all the details surrounding the search. Your lawyer will thoroughly investigate the circumstances to explore all potential ways that the search or the warrant itself can be attacked, as part of your defense.
If you are stopped and questioned by the police, safeguard your rights. Protect your rights to refuse consent to a search, remain silent, and have legal counsel present during questioning. Firmly (but non-aggressively) asserting your rights is the best way to prepare for defending against any criminal charge that may be filed. Then, at your first opportunity, contact a criminal defense attorney.
If you face state or federal criminal charges in Las Vegas, Henderson, or elsewhere in Clark County, you need an aggressive criminal defense attorney who not only understands the laws and local courts and practices, but also knows how to investigate and analyze evidence. Criminal defense attorney Joseph Gersten will evaluate your case based on his extensive investigative background and Las Vegas criminal defense experience. Then, he will develop a strategy to put forward the strongest defense possible.
Your initial consultation is always free-of-charge. Call 702.857.8777 or complete our online form to schedule an appointment.