What Are Your Rights During a Search and Seizure?

admin — Sat, 12 Dec 2020 07:34:27 +0000

Are you aware of your Fourth Amendment rights? You should be. As an American citizen, it’s important to know your rights so you’re prepared when dealing with law enforcement.

Put simply, the Fourth Amendment protects United States citizens from unwarranted and unjustified searches and seizures of their person, home, and property. However, in practice, it is not that simple.

The Fourth Amendment still allows for search and seizure that are reasonable and that are warranted by probable cause. Understandably, probable cause can be a gray area and can often depend on law enforcement. Therefore, here’s what you should know about your rights and probable cause.

Rights Covered Under the Fourth Amendment

The Fourth Amendment prevents the violation of basic human rights by not allowing the government to search private property for no reason. But citizens need to be aware of their rights if they are going to defend them. Under the Fourth Amendment, you have the following rights:

You can refuse any request to search or seize your property. If probable cause is not available, law enforcement may simply request that they search your home, vehicle, or person. If you agree willingly to this search, they may continue this search. But you are not required to comply.
You are able to request a warrant if a search or seizure is suggested. Law enforcement should be able to either outline probable cause or give you a warrant before they begin to search or seize your property.
Your rights extend to property that has a reasonable expectation of privacy. This property includes luggage, cars, rental cars, purses, wallets, and hotel rooms – any area in which you would expect to be able to store private items.
You are protected from searches for evidence simply upon the suspicion of a crime. Police need to have some reason to believe that you have committed a crime or that a crime is in progress to complete a warrantless search; they cannot simply suspect you.

If you are searched and evidence or contraband is found, then the police often do have the right to seize these items. Further, they can seize items if they have probable cause to believe that the items are involved in a crime or that they originated through criminal dealings. At this point, you may want to engage professional help to get the items back.

Examples of Reasonable Causes for Search and Seizure

If a law enforcement officer has probable cause to believe that a crime is being committed, then they are allowed to perform a search and/or seizure without a warrant. Here’s what can constitute probable cause:

Hearing suspicious sounds. Law enforcement may have reasonable cause to believe that someone may be injured or in need of help if they hear suspicious sounds inside of a building.
Smelling drugs. If law enforcement officers smell drugs, they may have reasonable cause to search a person, their home, or their car.
Performing a suspicious traffic stop. In general, motor vehicles are considered to have less of an expectation of privacy than an individual’s home.
Seeing things in plain view. If an officer sees something illegal when looking into a home from outside, they generally have reasonable cause to enter.
Being in an area without expectation of privacy. Schools, as an example, often have lower requirements for probable cause, as the expectation of privacy is less.

If evidence against a person is found through a search that is later deemed to have been illegal, then it must generally be excluded from the case. But there are exceptions to this, such as in the event that the evidence would have been found regardless.
Either way, it’s extremely important for anyone who has experienced a search and seizure or who anticipates one to have legal counsel. If you have further questions about your Fourth Amendment rights, contact Hernandez Law Offices. We offer legal counsel to anyone facing criminal charges.

The post What Are Your Rights During a Search and Seizure? appeared first on Hernandez Law.

Excessive Force: Do You Have a Case?

admin — Fri, 12 Jul 2019 07:15:48 +0000

If you have been injured by the police or a private security firm through the use of excessive force, you may have been told that you are unable to sue for compensation because of governmental immunity. However, nothing could be further from the truth.

If the police or a security officer has crossed the line that lies between what is reasonable and what is excessive, they can be sued. Here is some additional information you may want to know.

What Is Excessive Force?

Police and private security alike are charged with protecting and serving during some of the most difficult times. Many times when they are called, adrenaline is already flowing in them and in the people they are responding to.

Once the police arrive on the scene of the call, their jobs require them to make judgement calls that could easily injure or cost someone their life. While the Supreme Court recognized in Graham v. Connor in 1989, that the police have the right to use some degree of threat or physical coercion, it must be proportional to the threat involved.

If the threat escalates, and those involved have failed to respond to lesser measures of force, the use of force can increase.

Once the threat ceases to exist or is secured, the use of any type of force should cease. The police are prohibited by law from exceeding this proportional amount of force to protect themselves or others, and must use lesser means when it is at all possible.

For example, police officers should not kick, strike, or beat someone who is already securely handcuffed. The police should not use a weapon against unarmed suspects or use tasers, pepper spray, or other weapons against people when it is not necessary.

Police officers should take into consideration:

The alleged crime
The threat level of the alleged suspect
The cooperation of the alleged suspect
Most departments require officers to use the least amount of force necessary to perform the task they are assigned. However, the officers are often allowed to use whatever necessary force they feel they need to get the job done.

Are the Rules the Same for Private Security Guards?

The rules regarding excessive force are not the same for private security guards. Even if the guards are fully licensed and fully equipped with handguns, tasers, pepper spray, and handcuffs, they do not have the same rights as the police.

Private security officers are not required by law to apprehend a person or make an arrest. They always have the option of calling the police for assistance.

If the officers choose to take someone into custody for a crime or remove them from the property they are hired to protect, they must use common sense and reasonable force to do so. In California, reasonable force is defined as what force a typical, reasonable person would apply, or believe necessary, in the same situation.

How Do You Bring An Excessive Force Claim Against An Officer?

The fourth amendment of the U.S. Constitution protects you from excessive force during an arrest. If you feel your rights have been violated, you have the right to file a lawsuit against the officer who used the force, and you may even be able to file a suit against the municipality they are employed by.

Unfortunately, these cases can be extremely difficult as it’s usually your word against the word of the officer. Even when you have the crime on video, you will still usually have the burden of proof. This is why you should have an experienced personal injury attorney on your side.

Here at Hernandez Law Offices , we will be glad to meet with you, review your case, and assist you in securing the compensation you deserve. Give us a call today so we can begin working for you.

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