Legal Recourse After an Illegal Search
What recourse do I have if I’ve been the victim of an illegal search? I’m Oklahoma City Attorney Aaron Easton and this is part three in a three-part series covering your constitutional right to be protected against unreasonable searches and seizures by the state, specifically performed by law enforcement.
So in part one we talked about the areas in which you would have a reasonable expectation of privacy and some areas in which the court has said you don’t have a reasonable expectation of privacy. In part two we talked about some of the circumstances in which law enforcement could conduct a search of the areas even that you do have an expectation of privacy in such as with the search warrant.
Legal Recourse in a Criminal Setting
Today we’re going to talk about your legal recourse if you have been the victim of an unconstitutional search. I should point out that you could have a civil recourse, a lawsuit for a violation of your constitutional rights in this kind of scenario, but today we’re going to talk about your recourses in a criminal setting, specifically if the state is attempting to use evidence that they obtained during an illegal search and they’re trying to use that against you at trial.
So the recourse you do have in that scenario is what’s called the exclusionary rule and so if a court determines that the search that law enforcement conducted in order to get evidence that they’re trying to present against you was in fact unconstitutional, the court can exclude that evidence from being used against you at trial. In fact they can exclude the direct evidence as well as indirect evidence obtained through an unconstitutional search and that’s often referred to as fruit of the poisonous tree. The original search was poisonous and it led to this evidence down the road.
Exceptions to the Exclusionary Rule
It’s also important for me to point out there are some scenarios and situations in which even illegally obtained evidence can still be used against you. One of those is if instead of law enforcement searching your home, maybe they searched your friend’s home and inside your friend’s home they got evidence against you and they’re trying to use it against you. Well, the court would say you don’t have standing at your friend’s home. You don’t have an expectation of privacy at your friend’s home absent, you know, if you’re living there or something like that.
But if it’s some other home you’re not in, you don’t have standing there to object to the search of that home. So that evidence that you don’t have standing for could still come in against you. In fact it is going to come in against you in trial. Some other ways in which that evidence could be used against you is if even if it was, you know, back to the original scenario, your home was illegally searched, you know, and your expectation of privacy was breached, but you’re testifying on the stand and something you’re testifying to goes against the evidence that was found there.
Get Legal Advice in Case of Unconstitutional Search
Well, that could still be used against you at trial for impeachment purposes to show that the testimony you’re giving at trial is untruthful. So even if it can’t be used in the state’s case in chief, the case in which they’re trying to, you know, prosecute you for the crime, it could still be used to impeach you. Unconstitutionally obtained evidence can also be used in civil suits against you and in grand jury indictment hearings, things of that nature can still be used against you.
And then lastly, kind of a kind of an odd one, the court has determined that if law enforcement breaches their duty to provide knock and notice on a warrant, so an otherwise valid warrant, they’re going to serve that warrant, but they just don’t knock and notify you that they’re coming in for a search. Well, if they breach that duty to knock and notice, that doesn’t rise to the occasion, the courts have said, to exclude that evidence. So that could still come in against you.
Contact an Attorney for a Free Consultation
This is a sometimes confusing area. It’s an important area of law. It could be the difference between you being convicted of a crime and walking free, being found not guilty. So it’s going to be something that if you think you’re in a scenario, if you’re in an active criminal case, you think you may have been the victim of an unconstitutional search, you’re going to want to speak to an attorney privately and confidentially.
To speak to somebody with my firm for a free consultation, you can get us at postconviction.lawyer or at (918) 932-2833.