At Parkman White, LLP our criminal attorneys have seen an increase in warrantless searches of private residences by Alabama law enforcement. When incriminating evidence is found in one’s house, the first thing a good criminal lawyer should explore is whether that evidence can be suppressed.
Alabama’s search and seizure law is governed by United States federal law interpreting the Fourth Amendment of the United States Constitution, which protects citizens 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.
In other words, according to the Fourth Amendment, a person’s house should not be searched unless there is a warrant based upon probable cause, sworn to under oath, describing the place to be searched and the items to be taken, if found.
However, over the years, exceptions have been made to this warrant requirement. Even so, a warrantless entry and search of a private home is presumed to be unreasonable. Yet, warrantless searches have been upheld by courts only where there is: 1) probable cause of criminal activity, and 2) exigent circumstances. Because of the presumption of unreasonableness, the burden lies with the government to prove that law enforcement’s actions were proper. This has been described by the courts as a “heavy burden” when the government is attempting to justify a warrantless entry into one’s house. Inconvenience and a slight delay have been determined to be insufficient reasons for police to fail to obtain a warrant.
Probable cause is required both to obtain a warrant, and to justify a warrantless search. The difference between a search pursuant to a warrant or a warrantless search comes down to whether “exigent circumstances” exist.
In laymen’s terms, exigent circumstances means that the police believe an emergency exists which requires their immediate action without a warrant.
Common examples of exigent circumstances include danger to the officers or the community in general, or the fear of destruction of evidence. However, what the officers view as exigent has to be looked at in an objective manner by the court considering the legality of the search. Much argument takes place on a case by case basis to determine whether the officer’s subjective belief of exigent circumstances meets the judge’s objective view of exigency.
The most common claim of exigency by law enforcement is their fear that evidence would be destroyed. In some instances, such a belief may meet the definition of exigency. However, some law also says that “a mere speculative claim that the evidence might have been destroyed if it had not been seized without a warrant is insufficient.”
Every case is different, but common factors examined by the court in determining exigency of a warrantless search are:
1. The degree of urgency involved and the amount of time necessary to obtain a warrant
2. Reasonable belief that the contraband is about to be removed
3. The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought
4. Information indicating the possessors of the contraband are aware that the police are on the trail
5. The ready destructibility of the contraband.
The difficulty for a criminal attorney is to convince the judge to rule against the State and their police officers. “Absence the showing of true necessity – that is, an imminent and substantial threat to life, health or property – the constitutionally guaranteed right to privacy must prevail.”
If you’ve been arrested and believe evidence was seized improperly in Birmingham or any other area of Alabama, immediately contact a criminal attorney to examine whether your rights under the fourth amendment have been violated.