Criminal Law Newsletters

Search and Seizure - An Overview

The Fourth Amendment to the United States Constitution has been the subject of thousands of legal opinions. The Fourth Amendment guarantees that all people in the United States shall be free from unreasonable government searches. The Fourth Amendment provides: 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.

Motions to Suppress Evidence

A defendant may file a motion to suppress evidence during the pretrial phase of her trial. A motion to suppress is filed when the defendant is seeking to exclude evidence on the basis that it was illegally obtained. The evidence may have been obtained in violation of the defendant's right against unreasonable searches and seizures as provided under the Fourth Amendment of the United States Constitution. The evidence may have been tainted by other illegally obtained evidence, thereby supporting the defendant's assertion that it should be excluded.

MISTAKE OF FACT AS A DEFENSE

The defense of mistake of fact is used when a defendant is accused of committing a particular crime and the defendant admits that he or she committed another crime, which other crime is different from the particular crime and is not a lesser-included offense of the particular crime. The defense is based on the defendant's belief that he or she was committing another crime, which crime is less serious than the crime with which the defendant is charged.

NECESSITY AS A DEFENSE

A necessity may be claimed as a defense when a defendant reasonably believed that his or her criminal act was immediately necessary to avoid imminent harm. The reasonableness of the defendant's act and the harm that was sought to be avoided by the defendant are the essential elements of the defense. The defendant must show that the harm that he or she sought to avoid was greater than the harm that was committed by his or her criminal act. In other words, the defendant must show that he or she was attempting to achieve a "greater good."

SCHOOL SEARCHES

The basic requirement for a search of a student is the reasonableness of the search. If the school officials have a reasonable belief that the search will produce evidence that the student has violated any rules of the school, the officials may search the student.