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Can I Sue for Unlawful Search and Seizure?


The Fourth Amendment protects Americans from unlawful search and seizure, stating that all people have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…" This means that any search of your property or person requires either probable cause or a search warrant. Without this, any evidence found is inadmissible in court. Additionally, federal law provides illegal search and seizure victims with the right to sue for damages.

What is a Properly Executed Search Warrant?

Search orders are warrants, signed by a judge, that authorize police officers to search a specific location for specific items. To obtain the warrant, the officers present an affidavit to a magistrate, stating that they have probable cause that a search will reveal either criminal activity or evidence of a crime. The suspect may not contest the search warrant at the time of its issue, but may later challenge its validity.

The search warrant specifies location as well as types of items. If the warrant specifies drug paraphernalia in the backyard, the officer may not search inside the house for weapons. However, officers may be allowed to seize any contraband items found during their search, even if such items are not listed on the warrant. If the warrant specifies a person, the officer may not search others present when the warrant is served. If the officer has reasonable suspicion others present are engaged in criminal activity, they may be detained and frisked for weapons for the officer's safety (Ybarra v. Illinois and Michigan v. Summers).

What is an Improperly Executed Search Warrant?

Searches conducted by police acting in good faith are typically considered valid and evidence collected is admissible. "Good faith" means that the officers trusted the information they provided in their affidavit was correct and that the magistrate issued an error-free warrant. In US v. Leon, the Supreme Court decided that officers did their best to comply with the Fourth Amendment and were not liable for mistakes made by the judge issuing the warrant. Arizona v. Evans made similar findings in favor of police who executed warrants based on faulty records, deciding the officers in question didn't know the records were incorrect.

The same does not hold true when officers knowingly enter false information in their attempt to obtain a search warrant. Any evidence uncovered during the execution of this warrant is not admissible.

When May Police Enter without a Search Warrant?

Search warrants are not always required. Police may conduct a search when someone willingly consents to the officer's request to search his or her home. Typically, courts decide this consent includes all interior locations. However, vehicles and any outbuildings may not be included.

Consent is considered valid if the officer reasonably trusts the authority of the person consenting. Additionally, courts typically consider the consent of one tenant sufficient (Frazier v. Cupp). Note also that the police do not have to warn residents that they have the right to refuse (Illinois v. Rodriguez).

Officers may seize evidence plainly visible without a warrant, assuming they were in the area for legitimate reasons when they first spotted the contraband item or items (Coolidge v. New Hampshire). Officers are also permitted to complete a search of your person and immediate area after a lawful arrest (US v. Robinson).

Illegal Search and Seizure and Section 1983

If you are a victim of illegal search and seizure, Section 1983 of the Civil Rights Act of 1871 provides grounds for a civil suit against the offending officer. This statute allows citizens to collect damages if deprived of their civil rights by police officers acting "under the color of law." To be applicable, the officer must have arrested you and been on duty when the illegal search took place. You may also be able to sue if you can prove malice, meaning the illegal search and seizure was intentional.

What Damages May I Include in My Unlawful Search and Seizure Suit?

There are two types of damages you may sue for. Compensatory damages compensate you for losses related to the illegal search, including property destroyed, pain and suffering, and loss of income. If you prove malicious prosecution, you may also sue for punitive damages, considered a form of punishment for the infraction of your civil rights. You're also entitled to your attorney's fees when you win a Section 1983 case.

Schedule a free consultation with a civil rights attorney experienced in handling cases of police misconduct. He or she will advise you about the strength of your case and what type of damages you can expect to collect.