Federal drug crimes are among the most commonly prosecuted in New York federal and state courts. Defending a state drug charge is a complex matter in itself, but defending a federal drug charge is even more challenging because of the wider scope of issues, better prepared prosecution, stronger evidence, and harsher potential penalties. While a defense lawyer in a drug criminal case should examine all problems, one of the basic issues that need scrutiny is the law of search and seizures contained in the Fourth Amendment ? an ever important subject in all drug cases.



The Fourth Amendment provides protection against searches and seizures by the government. It is not an absolute protection. Only unreasonable searches are prohibited. In drug cases, the government's case is often strengthened by seized evidence. Any criminal defense attorney should carefully examine the legality of how evidence was obtained. Often, the seizure may be challenged on grounds of violation of constitutional rights. If the search or seizure were ?unreasonable?, the government violated the Constitution and the evidence will not be admissible in court. In many cases, the government's evidence is crucial to proving the charges and the prosecution case cannot go ahead without it. If the evidence is suppressed, the government's case may be so weakened that the charges may be dismissed.

The Fourth Amendment protections do not apply across the board. There are several criteria that determine when the search is unreasonable. Most importantly, in order to enjoy the Fourth Amendment protection, the person must have a reasonable expectation of privacy. One example of that would be one's home or telephone conversation. People expect that outsiders do not enter their homes or eavesdrop their conversation without permission. In some situation, there is no clear cut case of whether the expectation is "reasonable". Each such case is decided individually. One factor courts consider is whether the person wanted to keep the subject of search or seizure private and whether such expectation was reasonable and excepted. If you mail a letter in a sealed envelope, you want to keep the letter's contents private. On a simple level, if you receive a letter and simply discard it where anyone may read it, obviously you forfeit your expectation of privacy regarding the contents of the letter. Similarly, if you carry in a public area a small object in your pocket where no one can see it, your intention is to conceal it. If you carry the same subject in your hand, you don't mind people seeing it.

Another issue is that not only should your expectation of privacy be reasonable, but the governmental intrusion of that privacy must also be reasonable. For example, normally (in most cases) police may not search your house without a warrant. However, once a search warrant is issued, the search is reasonable. A good defense attorney will make sure that the warrant itself was valid, i.e. it was issued by a neutral judge, police or federal agents had probable cause to conduct the search, and the warrant specified what, who, and where was to be searched or seized. In order to demonstrate "probable cause," agents must disclose facts that would make a reasonable person to believe that a crime is being, or has been, committed.

There are several exceptions to the warrant requirement. There are situations where police may conduct a warrantless search or seizure which will be upheld in court. These cases involve scenarios where it is impractical or impossible for law enforcement to seek warrant prior to conducting the seizure or a search. For instance, it is permissible for police to search a person after a lawful arrest to locate weapons or prevent the destruction of evidence. It is also acceptable for police to conduct a search where a person voluntarily waives the Fourth Amendment rights, or where the object searched or seized were in plain view, assuming police had the right to be where there are when they see the object. Another common scenario is the automobile exception where police may search cars if they have probable cause to believe that there is contraband inside and it would be moved before a warrant can be obtained. Finally, police may conduct warrantless searches and seizures in emergency situations when it is impossible to obtain a warrant.