If you were recently arrested and charged with a serious drug related criminal offense in the State of Tennessee, you likely already know you are facing serious penalties if convicted. Hopefully, you plan to retain the services of an experienced criminal defense attorney to represent you and ensure that your rights are protected throughout the prosecution of your case. Although every criminal case is unique, there is a good chance that a search and seizure of your home was part of the investigation that led to your arrest. If so, it is also possible that the search was conducted illegally by law enforcement officers. One of the many benefits to hiring a drug defense attorney is the ability to challenge an illegal search of your house.
Your Constitutional Rights
As an accused in a criminal case you have a number of rights that are guaranteed to you both by the United States Constitution and by the Constitution of the State of Tennessee. In the U.S. Constitution, most of your rights are found in the first ten Amendments, collectively referred to as the Bill of Rights.
Your Fourth Amendment Rights
Your right to be free from illegal searches and seizures is found in the 4th Amendment to the U.S. Constitution, which reads as follows:
“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.”
Article 7 of the Constitution of State of Tennessee effectively mirrors the 4th Amendment to the U.S. Constitution.
The rights enumerated in both the 4th Amendment and Article 7 basically mean that the police cannot search your home without first obtaining a warrant, based on probable cause, unless one of the few exceptions to the warrant requirement applies.
How Can a Search and Seizure Be Illegal?
Just because a police officer conducts a search of your home doesn’t automatically mean it was a legal search. There are a number of ways in which a search and seizure can be illegally conducted, including:
- The search was conducted without a warrant and none of the exceptions to the warrant requirement apply.
- The police get someone to consent to the search (one of the exceptions) but the consent was not given freely and voluntarily.
- The police obtained a warrant, but there was insufficient probable cause for the warrant to have been issued.
- The search the police conducted exceeded the scope of the warrant.
What Can a Drug Defense Attorney Do about an Illegal Search?
If incriminating evidence was seized as a result of a search of your home, one of the first things your drug defense attorney will do is evaluate the search itself to determine if it was legal. If your attorney believes that the search was not legal, he/she can challenge the legality of the search by filing a motion with the court. A separate hearing may be scheduled to argue the issue in front of the judge. Although many of your 4th Amendment rights have been watered down by the courts over the years, your right to be secure in your home remains strong. If the State (through the prosecuting attorney) cannot prove that the search and seizure was conducted correctly, and within the bounds of the law, the judge will declare the search to be illegal. Any evidence obtained as a result of an illegal search is inadmissible at trial. Therefore, if the search of your home is ruled illegal, all of the evidence the police seized during the search will be excluded. Often, this leaves the State without sufficient evidence to proceed with the prosecution of the case; however, that is something that is determined on a case by case basis.
If you have been charged with a drug related criminal offense in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee drug defense attorney at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.
To learn more, please download our free search and seizure basics here.
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