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I understand that if the police perform an illegal search, then any evidence found during that search will be excluded from a trial, but what if they didn't find any evidence?

If the police do an illegal search, and they don't find anything, is there anything I can do about it?

30

You can file a federal criminal complaint under 18 USC 242 - Deprivation of rights under color of law, or (most commonly) a civil claim under 42 USC 1983 for the violation of your civil rights.

There are usually state laws, from some form of harassment (usually a summary offense) to misdemeanors like the Official Oppression we have in Pennsylvania.

Note that you can file these complaints even if they do find something incriminating. An illegal search is illegal regardless of its fruits.

  • 4
    A private party can't bring criminal charges. – Christian Conkle Jun 1 '15 at 16:18
  • 7
    True, not directly, but one can file a criminal complaint with the government at which point a district or state attorney has to evaluate it (see law.stackexchange.com/q/36/10). Just edited answer to make it clear that civil suits are the most common recourse. – feetwet Jun 1 '15 at 16:39
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In the United States, the general way to challenge violations of your constitutional rights is a civil action under 42 U.S.C. § 1983. This broad statute allows anyone injured by such a violation to obtain damages and an injunction against future conduct.

Police officers are entitled to qualified immunity from suit; a plaintiff must show that the officers' conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012). In other words, the search must not only have been unconstitutional; it must have been clearly so, under established law. This is a heavy burden.

Suing the police department involves some other hurdles; generally, one would claim that police policy was unconstitutional or that the department negligently hired or supervised the officers.

It's possible to prevail on facts similar to your hypothetical, however, so long as the search was clearly unconstitutional. I wasn't able to find any cases involving just an unlawful search; the closest I found was Frunz v. City of Tacoma, 468 F.3d 1141 (9th Cir. 2006), which also involved a seizure:

The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz’s home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs—Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said “never mind” and left.

As the officers doubtless knew, physical entry into the home is the “chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313 (1972); see also Murdock v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995) (“[P]rotection of individuals from unreasonable government intrusion into their houses remains at the very core of the Fourth Amendment.”). To safeguard the home, we normally require a warrant before the police may enter. “The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals . . . . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.” McDonald v. United States, 335 U.S. 451, 455-56 (1948); see also Groh v. Ramirez, 540 U.S. 551, 560 (2004). What extraordinary circumstances justified sundering the privacy and protection of Frunz’s home without a warrant?

Id. at 1142–43. Read the rest of the opinion; it's short, understandable, and relevant to this question. Spoiler alert: the circumstances were not sufficiently extraordinary.

(By the way, the Ninth Circuit later imposed sanctions on the defendants for raising a frivolous appeal.)

  • Also, people will often think a search was illegal b/c it was fruitless, or because the police didn't have a warrant (often in vehicle searches). I've also seen people think that a search is illegal because they weren't Mirandized, when Miranda isn't relevant to search/seizure. In cases, however, when a 1983 claim is viable, it is a powerful tool since attorney's fees are awarded if plaintiff prevails at all and the jury isn't aware of this. It is common that a jury thinks they are dinging an unlikable plaintiff with an award of one dollar, not realizing a quarter million in fees may follow! – gracey209 Aug 15 '15 at 4:12

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