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Suppressing Evidence from the Illegal Search of a Home

Posted on November 9, 2023 in

Suppressing evidence during an illegal search of a home is a high possibility, which means it cannot be used against a criminal defendant in court.  Many people are familiar with the saying that “a man’s home is his castle.” This expression perfectly encapsulates the fundamental belief by Americans that the government should not be permitted to enter into a person’s home, intrude on a person’s privacy, or seize a person’s property without permission. The Fourth Amendment to the United States Constitution creates and protects this individual liberty by prohibiting unreasonable search and seizure, and by requiring the government to obtain a search warrant before conducting a search.

The “exclusionary rule” is the legal principle developed by our courts that prohibits the government from using evidence against a defendant in a criminal prosecution when the evidence was gathered in violation of the Fourth Amendment.  The importance of this protection cannot be overstated – many criminal prosecutions are successfully defended by having evidence suppressed on the grounds that the government illegally obtained evidence in violation of the Fourth Amendment. However, while the concept might initially appear simple, there are exceptions to the warrant requirement and the law interpreting the prohibition against unreasonable search and seizure sometimes can be very complicated.

The Requirement of Governmental Action

The Fourth Amendment provides protection only against action by the government. This includes local, state and federal governmental levels. However, the Fourth Amendment usually does not provide protection against actions by private individuals. For example, if a person’s neighbor, without request by the government, removes incriminating evidence from the person’s yard and turns it over to the police, the person would not be protected by the Fourth Amendment. On the other hand, if the police asked the neighbor to remove the property, governmental action would be involved and the Fourth Amendment would apply.

What Constitutes A Search?

A place or area is entitled to Fourth Amendment protection only if the person owning or possessing the property has a reasonable expectation of privacy. For example, a person has a reasonable expectation of privacy that his garage will not be entered without permission. In one case, the courts held that the government violated a defendant’s expectation of privacy when it trespassed onto his property and placed a GPS tracking device on his car. In both of these examples, a search occurred.

On the other hand, courts have held that a person does not have a reasonable expectation of privacy in garbage placed by the roadside for collection. Similarly, a person would not have a reasonable expectation of privacy in something left outside in plain sight that can be viewed from the public roadway. In these examples, searches have not occurred.

Search Warrants, Probable Cause, and Supporting Affidavits

Under normal circumstances, the government must obtain a search warrant from a neutral and detached magistrate or judge, granting permission to execute a search. The search warrant is properly granted only if the magistrate has probable cause to believe a crime was committed or is in the process of being committed.

The process for obtaining a search warrant usually involves a law enforcement officer providing one or more affidavits to the magistrate. The affidavits contain information gathered by law enforcement and are offered to the magistrate in an effort to demonstrate probable cause. A police officer may also provide direct testimony to the magistrate.


When law enforcement obtains a search warrant for premises at a certain address, they are also entitled to search the “curtilage” around a home. This is the land immediately surrounding and associated with the home and may include motor vehicles and buildings.

On the other hand, if police do not have a search warrant, the curtilage may be protected, just like the home. For example, in one case a police officer, without a search warrant, walked into a portion of a person’s yard and looked at the VIN number of a car. Because the car was parked in a private part of the yard, near the home and away from public sidewalks, a search occurred in violation of the Fourth Amendment and the evidence was suppressed.

Attacking Search Warrants and a Finding of Probable Cause

If a criminal case involves the issuance of a search warrant, a criminal defense lawyer familiar with the intricacies of Fourth Amendment law may attack the search warrant and the magistrate’s finding of probable cause by finding shortcomings in the affidavits and other information provided to the magistrate. For example, the magistrate must consider, among other items, the timing of the occurrence of facts set forth in the affidavit, the reliability of the person or persons from whom information was obtained, and whether the information relied upon was obtained legally.

Additionally, the affidavits relied upon must contain an adequate description of the place to be searched and establish probable cause to believe the items sought will be found in the place to be searched. A trained criminal defense lawyer may be able to demonstrate that a law enforcement officer misrepresented facts or omitted important facts in the affidavit. A careful analysis of all search warrants issued in a criminal case, along with the supporting affidavits, is essential and often provides ammunition to support the defendant’s request for suppression of the evidence obtained in the search.

Exceptions to the Warrant Requirement

Under some circumstances, the government is permitted to conduct searches without a warrant. The following represent some of the most common exceptions:

Search incident to arrest. When police make a lawful arrest, they are entitled to search the person arrested without obtaining a search warrant.

Consent. A person may consent to a search. The consent must be given freely and voluntarily. Also, the person consenting may limit the scope of the consent.

Abandoned Property. Once a property is abandoned, the Fourth Amendment does not apply and the police may seize the property without a warrant.

Exigent Circumstances. In emergency cases, the police may act without a warrant. A careful review of court decisions may be necessary to determine if certain conditions constitute exigent circumstances.

Valid Stop and Frisk. There are special rules regarding how and when the police may temporarily stop and investigate a person in a manner that does not rise to the level of an arrest. This topic will be discussed in greater detail in an upcoming article.

If law enforcement officers obtain evidence in a case without a search warrant, the prosecution will undoubtedly attempt to argue that one of the exceptions to Fourth Amendment protection applies to the case. However, a criminal defense lawyer who knows the intricacies of the law for these exceptions to the Fourth Amendment and may be able to prove that the exception does not apply. For example, perhaps an accused gave consent for a limited search to one room and the law enforcement officer exceeded that consent by searching the entire house.  In this case, the evidence resulting from the illegal search of a home could be suppressed.

If your home, vehicle, or place of business has been searched by the police and you are facing criminal charges, contact criminal defense attorney Howard A. Snader. The sooner you get an attorney’s help, the better your chances are of achieving a favorable outcome.