Hebets & McCallin May 31, 2022

Citizens of this country have the right to be protected from unreasonable searches by law enforcement. Your Fourth Amendment rights may save you from an unlawful conviction if you are informed and have skilled legal counsel. This is a complex area of law, but we cover the basics for you in this article.

Any evidence collected during an illegal search is referred to as “fruit of the poisonous tree” and cannot be used in court. But what exactly makes a search unreasonable and therefore illegal? A search is illegal if consent, a warrant, or probable cause is not obtained by law enforcement. We will break down the definition of each of these elements so you can determine whether or not a search that has taken place on your property was within legal boundaries. If one of the items below was not used to conduct your search, you may have reason to contest it in court.


In the context of a police search, consent simply means giving an officer permission to enter and/or search the premises. These are the most common forms of warrantless searches. If you have given consent to an officer, you have legally allowed them to collect evidence and use it in court.  Consent is a powerful tool for law enforcement and allows them to bypass the need for probable cause or a warrant.

Some exceptions to this do exist. For example, if a person other than the suspect gives consent to the search, this may be considered an illegal search. In addition, if there is some form of deception used to attain consent, the search may be deemed unreasonable.


In the context of a police search, a warrant is the order authorizing law enforcement to search a particular area for evidence. The rules around search warrants have historical roots in the American Revolution’s forming of the United States. In British government, there were almost no rules around warrants and allowed agencies to search with almost no restrictions. With the founding of America, the Fourth Amendment was written in express opposition to these broad warrants and prohibited them in American society. There are several requirements and restrictions in obtaining an American warrant, including the signature of a judge, the specific search area, and the evidence that police are trying to recover.

It should be noted that while warrants are specific to certain locations, items that are in plain view of the officers may be seized during a search. Additionally, law enforcement can get a court order to order the items not be destroyed.

Probable Cause

Probable cause is necessary in order for police to attain a warrant. Though probable cause is a term that is constantly used in criminal cases, there is no universal definition. In a court of law, probable cause is shown when a “preponderance of the evidence” indicates that a crime was committed. The issue of probable cause and how officers determine if they have attained it can be nebulous. Largely, it will come down to the details of each particular case. It is always a good idea to run through the details of your case with a skilled defense attorney to determine whether or not probable cause was obtained by law enforcement in your case. This could be a key element in your legal defense.

If you or a loved one has been the subject or a search and charged with a crime, call us, we can help.