ILLEGAL SEARCH

AND SEIZURE
OF YOUR HOME
(Understanding Your Rights)
The Cassidy Law Firm
Monmouth County Bankruptcy and Criminal Law Attorney
Even the Most Law Abiding Citizen Should Have
a Basic Understanding of Search and Seizure Law
in Monmouth County As It Applies to Your Home
We are a Debt Relief Agency. We Help People File for Bankruptcy Relief Under the Bankruptcy Code.

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Most people consider their home to be a place where they can relax and get away from work
and the outside world. Whether your home is a studio apartment or a sprawling estate, your
home is your castle. Most of us are protective of our homes as well because we believe that
we have the right to keep the outside world away from our private retreat. What happens,
however, if the outside world is a law enforcement officer? Do you have the right to keep
her out? When can the police search your home and do they need a warrant to do so? Before
you assume that you will never need to worry about a search and seizure of your home,
consider the fact that the police could come knocking on your door one day because your
neighbor allegedly committed a crime. Do you have to let them in? Should you let them in?
Even the most law abiding citizen should have a basic understanding of search and seizure law
as it applies to your home.

THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION

When America first gained its independence the founding fathers set out to create a document
that would guide the fledgling nation for
years to come. The United States
Constitution is still going strong almost
three centuries later. The first ten
Amendments to the Constitution,
collectively referred to as The Bill of
Rights, sets forth a number of the rights
we are guaranteed as Americans. The
Fourth Amendment is where our right
against unreasonable searches and
seizures is found and states:

"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
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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."

THE NEW JERSEY CONSTITUTION, ARTICLE I, SECTION 7

The United States operates under a federalist system of government, meaning that power is
shared between one central government and various state governments. Therefore, each state
in the U.S. has its own Constitution as well. Article I, Section 7 of the New Jersey Constitution
essentially mirrors the Fourth Amendment by stating:

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 warrant shall
issue except upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the papers and things to be seized.

OBTAINING A WARRANT TO SEARCH YOUR HOME

In short, what both the Fourth Amendment and Section 7 mean is that under most
circumstances a warrant is
required to search your home.
Exceptions to that general
requirement will be discussed
later. To obtain a warrant to
search a private home a law
enforcement officer must first
have probable cause to
believe that a crime has been
committed and that evidence of the crime will be found in the place to be searched. The
precise definition of probable cause has been argued and debated since the term came into
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existence. For the purpose of a basic understanding of search and seizure law, however,
consider probable cause to require a reasonable suspicion.

Once an officer believes that probable cause exists to search a home the officer must write out
a probable cause affidavit that sets for the reasons why the officer believes probable cause
exists and explains, in detail, what property is to be searched and what items are to be
searched for at the property. The affidavit must then be signed, under oath, and presented to
a judge or magistrate for review. If the judge/magistrate is convinced that the requirements
for a warrant have been met the judge/magistrate will issue the warrant.

LIMITATIONS WITH A WARRANT

Contrary to what many people believe (and what law enforcement officers often lead people to
believe), a warrant does not give officer cart blanche to search a home. In fact, the warrant
must particularly describe the property and the items. If the warrant is for electronic records,
for instance, the police cannot search under your mattress. If the warrant is for stolen
computers, the police cannot open the medicine cabinet in your bathroom where a computer
could not fit.

WHEN CAN THE POLICE SEARCH WITHOUT A WARRANT?

Many of the rights we once had in the United States have slowly disintegrated after decades of
carving out exceptions to those rights; however, the courts have been reluctant to completely
do away with the expectation of privacy we have in our homes. Therefore, your home retains
the highest level of protection available when it comes to searches and seizures. Despite this,
the Supreme Court has carved out some exceptions to the warrant requirement for the search
of a home, including:
1. When you consent.This is, by far, the most common method used by the police to
circumvent the need for a search warrant. If you consent to the search of your home a
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warrant is not needed. Dont ever consent without speaking to an attorney first.
The police will often tell you it will just save time if you consent because they can get a
warrant. Let them get the warrant.
2. When contraband is in plain view.If you allow the police in for any legitimate
reason, or even open the door for them, and they see contraband in plain view they
can conduct a search without a warrant.
3. When the search is incident to arrest.In many jurisdictions the police may enter
your home to take someone into custody on a felony warrant. They are also allowed to
conduct a search of the immediate area under the subjects controlto ensure that the
subject does not have a weapon within easy reach.
4. When exigent circumstances exist.An exigent circumstance occurs when an officer
has a compelling need to take action but does not have the time required to obtain a
warrant.For example, if officers show up at a home to try and talk to a resident and
then hear someone screaming for help inside the home they may enter without a
warrant.

ILLEGALLY OBTAINED EVIDENCE THE EXCLUSIONARY RULE

What happens if law enforcement officers conduct an
illegal search and find evidence of a crime? In that case,
the exclusionary rule applies. In essence, the exclusionary
rule says that evidence obtained illegally cannot be
introduced at trial. The Fruit of the Poisonous Tree
doctrine further prevents evidence that would not have
been found but for the illegal search from being used
against you at trial. For instance, if the police conduct a
warrantless search of your home that turns up an address
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and that address turns out to be a storage facility full of drugs, the drugs might not be
admissible if the original search of your home is held to have been conducted illegally.

Because you should feel safe and secure in your own home, a basic understanding of when
and how that safety and security can be breached by the police is imperative. If you are ever
asked to consent to a search of your home consult with an experienced New Jersey criminal
defense attorney before doing anything else.

Cornell University Law School, Fourth Amendment: An Overview
Cornell University Law School, Exclusionary Rule
New Jersey State Constitution, Article I, Section 7

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About The Cassidy Law Firm, Attorneys at Law
Few attorneys can match the unique success that Harold Cassidy the founder of our law
firm has achieved. Well-earned statewide awards from his peers and national recognition
from mainstream media outlets have resulted from Mr. Cassidy establishing legal precedents
and handling high-profile cases.

For his blazing of new legal trails, our founder has received national recognition as an ABC
News Person of the Week, as well as recognition from the state as a Top Lawyer in New
Jersey Monthly and inclusion in New Jersey Super Lawyers Magazine.

While a high level of acclaim has come our way, we do not forget where our roots are. The
attorneys at The Cassidy Law Firm are dedicated to helping New Jersey residents charged with
crimes, injured in an accident or needing help with a Chapter 7 or Chapter 13 bankruptcy
filing.

Attorney Harold Cassidy brings more than 35 years of experience providing representation that
some clients have referred to as exquisite. He appreciates the unique problems his clients
face, and he provides empathetic and attentive advocacy to the legal matters impacting their
lives that include:

Car accidents
Birth injuries
Surrogate mother and gestation carrier cases
Medical malpractice
Abortion malpractice
Informed consent malpractice
Trips, slips and falls
Juvenile crimes
Criminal appeals
Municipal court cases
DWI and drunk driving

The Cassidy Law Firm
750 Broad Street, Suite 3
Shrewsbury NJ 07702
Telephone: (732) 747-3999
Fax: (732) 747-3944
Website: www.thecassidylawfirm.com