# Laws on illegal searches
**URL:** https://boards.straightdope.com/t/laws-on-illegal-searches/327324
**Category:** Great Debates
**Created:** [October 21, 2005, 8:20pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324 "2005-10-21T20:20:31Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Dunderman](https://boards.straightdope.com/u/Dunderman)
#### Post date: [October 21, 2005, 8:20pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/1 "2005-10-21T20:20:31Z")
The way I understand it (and I welcome correction on this point if I’m mistaken), the law in most developed countries is, in general terms, that evidence obtained by unlawful searches is inadmissible in court. If a police officer without proper authorisation, such as a search warrant, and without probable cause to believe an “emergency” search is warranted, searches a house or a car and finds evidence of a crime, said evidence is inadmissible.
If I’m right, what’s the logic behind this? Naturally we should all be protected from unlawful searches, but surely a better solution must be to prosecute the officer but allow the evidence to be used?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 21, 2005, 8:29pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/2 "2005-10-21T20:29:32Z")
> [@Priceguy](#):
>
> The way I understand it (and I welcome correction on this point if I’m mistaken), the law in most developed countries is, in general terms, that evidence obtained by unlawful searches is inadmissible in court. If a police officer without proper authorisation, such as a search warrant, and without probable cause to believe an “emergency” search is warranted, searches a house or a car and finds evidence of a crime, said evidence is inadmissible.
>
> If I’m right, what’s the logic behind this? Naturally we should all be protected from unlawful searches, but surely a better solution must be to prosecute the officer but allow the evidence to be used?
I can’t speak for other countries, but in the US, the thinking goes that the best way to eliminate unlawful searches is to remove the motivation for them. If theofficer simply cannot use the fruits of an illegal search, he has no real motive to execute the illegal search. This is considered a far better prophylactic measure than the method you suggest, although your method would be arguably just as constitutional.
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### Author:  [@aamco](https://boards.straightdope.com/u/aamco)
#### Post date: [October 21, 2005, 8:36pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/3 "2005-10-21T20:36:40Z")
> [@Priceguy](#):
>
> surely a better solution must be to prosecute the officer but allow the evidence to be used?
The drawback here is the potential for someone high up in the police department to pin the “crime” on a subordinate; the criminal gets bagged, the police officer gets “punished”, and the person responsible gets away with two promotions.
Likewise, it would be easy for the DA to pin stuff on the police, or the police to pin stuff on the DA’s office. The no-admission rule is a little bit like making everyone do pushups when one person fails. Tough, and in many cases unwarranted, but fair.
Many jurisdictions have a “hot pursuit” clause, that is, if an officer is chasing a carjacking suspect through your house and discovers drugs, that evidence can be used in court.
On a separate note, though, if police officers are looking for ways to evade search laws, why not simply walk down the street to a pay phone and call in an “anonymous” tip?
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### Author:  [@Telemark](https://boards.straightdope.com/u/Telemark)
#### Post date: [October 21, 2005, 8:40pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/4 "2005-10-21T20:40:46Z")
> [@aamco](#):
>
> On a separate note, though, if police officers are looking for ways to evade search laws, why not simply walk down the street to a pay phone and call in an “anonymous” tip?
Because an anonymous tip won’t be enough to get you a search warrent.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [October 21, 2005, 8:49pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/5 "2005-10-21T20:49:58Z")
> [@Priceguy](#):
>
> The way I understand it (and I welcome correction on this point if I’m mistaken), the law in most developed countries is, in general terms, that evidence obtained by unlawful searches is inadmissible in court.
Actually, the exclusionary rule is, as far as I know, mostly an American product, and most other countries do not have it. And many of those, such as Japan, are nowhere near as strict as in America.
> [@Priceguy](#):
>
> If I’m right, what’s the logic behind this?
As **Bricker** pointed out, it’s a protective rule meant to be a deterrant to police misconduct.
> [@Priceguy](#):
>
> Naturally we should all be protected from unlawful searches, but surely a better solution must be to prosecute the officer but allow the evidence to be used?
I would be steadfastly against criminally prosecuting police officers for violations which would invoke the exclusionary rule, except in the most egregious cases. Criminal prosecution is available for official misconduct, if it arises to that level, but for lesser problems, it would cause, in my view, a great decrease in law enforcement. It would take a great deal of incentive away from police officers engaging in searches and seizures. I will note that police officers are still liable under civil law, for illegal searches.
Personally, I’m not a huge fan of the exclusionary rule. Which should be a surprise to absolutely no one.
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### Author:  [@Dunderman](https://boards.straightdope.com/u/Dunderman)
#### Post date: [October 21, 2005, 8:56pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/6 "2005-10-21T20:56:04Z")
> [@Hamlet](#):
>
> Actually, the exclusionary rule is, as far as I know, mostly an American product, and most other countries do not have it.
I’m pretty sure it works the same way here in Sweden, for example.
> [@](#):
>
> I would be steadfastly against criminally prosecuting police officers for violations which would invoke the exclusionary rule, except in the most egregious cases. Criminal prosecution is available for official misconduct, if it arises to that level, but for lesser problems, it would cause, in my view, a great decrease in law enforcement. It would take a great deal of incentive away from police officers engaging in searches and seizures. I will note that police officers are still liable under civil law, for illegal searches.
>
> Personally, I’m not a huge fan of the exclusionary rule. Which should be a surprise to absolutely no one.
Unless I read you incorrectly, you would like for evidence obtained through illegal searches to be admissible, but at the same time you are against prosecuting officers who perform illegal searches. Is that correct? If so, how do you remove the incentive behind illegal searches, assuming you wish to do so?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 21, 2005, 9:02pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/7 "2005-10-21T21:02:29Z")
> [@Telemark](#):
>
> Because an anonymous tip won’t be enough to get you a search warrent.
It might be. It depends on what indicia of reliability the anonymous tipster displays.
Anonymous tipster #1: “Check out apartment #14 at the corner of Ave A and 10th Street. You’ll find some illegal drugs there.”
Not enough for a search warrant.
Anonymous tipster #2: “Joe Public, who lives at 1320 10th Street, Apartment #14, has a meth lab running. It’s in the second bedroom, down the hall on the right. Joe and his brother Steve are in there every night cooking up meth. You’ll see the van they use to transport the product parked on Avenue A. It’s a white vam with a faded red stripe along the middle, license plate XGF-8765. Joe’s been arrested for possession before.”
Assuming the facts the tipster mentions are correct - the van, Joe’s prior record - then that would probably be enough for a search warrant.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [October 21, 2005, 10:17pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/8 "2005-10-21T22:17:21Z")
The other point to having constitutionally invalid searches “punished” by making the fruits of the search inadmissable is that it doesn’t put officers in fear of bad results to them for honest mistakes. Generally, we don’t want the police worrying at every turn about the threat to their own financial well-being as a result of trying to be an officer.
By excluding improperly obtained evidence, the incentive for obtaining such evidence is removed. By not punishing the officer (except in extreme cases, and then only through sanctions within the department), the officer isn’t gun-shy about obtaining evidence down the road which WOULD be admissible, but he wasn’t certain at the time it was so.
Every few years, someone here floats the concept of a comprehensive set of tort causes of action for contitutional violations, including unreasonable searches/seizures. They die a swift death, if for no other reason than inertia, that great aspect of American jurisprudence. 😛
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### Author:  [@Dunderman](https://boards.straightdope.com/u/Dunderman)
#### Post date: [October 21, 2005, 10:22pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/9 "2005-10-21T22:22:51Z")
> [@DSYoungEsq](#):
>
> The other point to having constitutionally invalid searches “punished” by making the fruits of the search inadmissable is that it doesn’t put officers in fear of bad results to them for honest mistakes.
I understand what you’re saying and it makes sense, but how easy is it to perform an illegal search through an honest mistake?
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [October 21, 2005, 10:54pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/10 "2005-10-21T22:54:33Z")
The thing I’ve never liked about the exclusionary evidence principle is that it does nothing specifically to protect innocent people. Let’s say the cops decide to ransack my house tonight without a warrant. They go through and search everywhere and find no evidence of any crimes. So because no evidence was found the remedy of excluding evidence is unavailable to me. Then they go next door and do a warrantless search on my neighbor’s house and discover five pounds of heroin. In his case, there actually was evidence of a crime that could be excluded from being presented in court. So while both of our rights were equally violated only my neighbor receives any legal remedy. How screwed up is a procedure that only helps criminals?
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### Author:  [@silenus](https://boards.straightdope.com/u/silenus)
#### Post date: [October 21, 2005, 10:55pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/11 "2005-10-21T22:55:04Z")
The lawyers will fill in the details, but there are exceptions to the exclusionary rule. If the officers acted “in good faith,” then the evidence may be admitted. So if the warrant wasn’t legal, but they thought is wasand acted in good faith, you’re still busted. That gets around the problems associated with typos on the warrant, etc.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [October 21, 2005, 10:55pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/12 "2005-10-21T22:55:46Z")
> [@](#):
>
> I understand what you’re saying and it makes sense, but how easy is it to perform an illegal search through an honest mistake?
Easier than you might imagine. I’ve done it.
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### Author:  [@Dunderman](https://boards.straightdope.com/u/Dunderman)
#### Post date: [October 21, 2005, 11:08pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/13 "2005-10-21T23:08:41Z")
> [@Little Nemo](#):
>
> Easier than you might imagine. I’ve done it.
Could you explain in general terms? I don’t mean to be snarky; I just don’t understand how you accidentally do a search without a warrant.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [October 21, 2005, 11:33pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/14 "2005-10-21T23:33:55Z")
The warrant wasn’t an issue; none was required under the circumstances. The search was illegal for other reasons I was unaware of.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [October 21, 2005, 11:44pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/15 "2005-10-21T23:44:10Z")
> [@Little Nemo](#):
>
> Let’s say the cops decide to ransack my house tonight without a warrant. They go through and search everywhere and find no evidence of any crimes. So because no evidence was found the remedy of excluding evidence is unavailable to me.
There isn’t a need for the remedy in that case, though, because you weren’t harmed by the search. Your neighbor was, because, if the heroin was admitted into evidence, it would increase the chance of him being convicted.
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### Author:  [@Dunderman](https://boards.straightdope.com/u/Dunderman)
#### Post date: [October 21, 2005, 11:47pm UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/16 "2005-10-21T23:47:32Z")
> [@Captain Amazing](#):
>
> There isn’t a need for the remedy in that case, though, because you weren’t harmed by the search.
Having cops come uninvited into your home and turn it inside out qualifies as “harm” in my book.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [October 22, 2005, 12:34am UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/17 "2005-10-22T00:34:21Z")
> [@Priceguy](#):
>
> I understand what you’re saying and it makes sense, but how easy is it to perform an illegal search through an honest mistake?
Very. Remeber that the decision that the search was unconstitutional is an after-the-fact result. Regardless of how often you try to insulate the decision-making process from second-guessing, it happens a lot. Read any series of cases regarding decisions finding searches or seizures to have been unconstitutionally conducted and you rarely find that the officer simply ignored common sense application of known constitutional law.
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### Author:  [@Muffin](https://boards.straightdope.com/u/Muffin)
#### Post date: [October 22, 2005, 1:21am UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/18 "2005-10-22T01:21:11Z")
> [@Priceguy](#):
>
> The way I understand it (and I welcome correction on this point if I’m mistaken), the law in most developed countries is, in general terms, that evidence obtained by unlawful searches is inadmissible in court. If a police officer without proper authorisation, such as a search warrant, and without probable cause to believe an “emergency” search is warranted, searches a house or a car and finds evidence of a crime, said evidence is inadmissible.
>
> If I’m right, what’s the logic behind this? Naturally we should all be protected from unlawful searches, but surely a better solution must be to prosecute the officer but allow the evidence to be used?
In Canada it is a bit of both. In Canada the court will decide whether or not to admit illegally obtained evidence by considering whether or not admission of the evidenced would bring the administration of justice into disrepute. R. v. Collins sets out the basic test, but there are a lot of cases that refine it under various circumstances. In general, if the evidence is important to the prosecution of a serious offence and the infraction of rights by the police was minor, then the evidence goes in, whereas if the offence being prosecuted is minor but the infraction by the police is major, then the evidence will not go in.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [October 22, 2005, 4:31am UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/19 "2005-10-22T04:31:41Z")
> [@Little Nemo](#):
>
> The thing I’ve never liked about the exclusionary evidence principle is that it does nothing specifically to protect innocent people. Let’s say the cops decide to ransack my house tonight without a warrant. They go through and search everywhere and find no evidence of any crimes. So because no evidence was found the remedy of excluding evidence is unavailable to me.
But that doesn’t mean you’re without a remedy. You can sue in tort, for trespass; you may also have an action for breach of your civil rights.
The exclusionary remedy is a specific remedy that applies in criminal prosecutions - it doesn’t eliminate other possible rights of action that may be available to you.
From [FindLaw](http://caselaw.lp.findlaw.com/data/constitution/amendment04/06.html#f170):
> [@](#):
>
> Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.
>
> Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit for damages and other remedies under a civil rights statute in federal courts. While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts.
Obviously, whether such an action would succeed would depend on the particular facts of the case.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [October 22, 2005, 4:39am UTC](https://boards.straightdope.com/t/laws-on-illegal-searches/327324/20 "2005-10-22T04:39:53Z")
> [@Priceguy](#):
>
> I understand what you’re saying and it makes sense, but how easy is it to perform an illegal search through an honest mistake?
> …
> Could you explain in general terms? I don’t mean to be snarky; I just don’t understand how you accidentally do a search without a warrant.
Well, you could have a warrant that you think is valid, but the court subsequently rules it was invalid, and therefore your search wasn’t authorised by law. There may then be a good faith exemption, but the search would be prima facie unconstitutional.
In other cases, the law recognises that there can be warrantless searches: plain view, Terry frisks, hot pursuit, etc. As an LEO you honestly believe that in a particular case there are grounds for a warrantless search. Subsequently, the court may disagree with you and rule that the search was unlawful.
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