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Searches and seizures of evidence by police in New York generally require probable cause and a search warrant under the Fourth Amendment to the United States Constitution. Warrantless searches are permitted, but police must be able to prove that probable cause existed before the search was initiated.

Finding illegal substances or other evidence of drug offenses on someone or in his or her car or home does not justify a search if there was no probable cause when it was begun. Probable cause means that the facts and information available to the police before the search was begun was sufficient to establish in the mind of a reasonable person that it was more likely than not that evidence of a crime would be discovered at that particular location or on the person to be searched.

There are circumstances, however, when police may not have probable cause to conduct a search, but believe that further investigation is necessary because they have reasonable suspicion to believe that criminal activity might be going on. Reasonable suspicion is more than merely a hunch or a gut feeling.

Unlike probable cause, where an officer can recite facts to support his or her belief that a crime has been committed or that evidence will be found in a search, reasonable suspicion relies upon an officer's training and experience to lead him to the reasonable belief that a person may be engaged in criminal activity.

An officer possessing reasonable suspicion may approach a person to investigate further, but the officer is not authorized to conduct a search.

Absent probable cause, an officer may not search the person who he or she approaches. The police officer may, however, perform a light pat down of the person's outer clothing to determine if there are any concealed weapons that could harm the officer or another person.

Unless it feels like a weapon, such as a knife or a gun, the police may not go into a person's pockets as they could do in a search conducted with probable cause. A pat down that reveals something in a pocket that feels like drugs or drug paraphernalia cannot progress to a seizure and a charge of possession of drug paraphernalia or possession of drugs without probable cause.

The law pertaining to search and seizure is complex. This post is not offered as legal advice, nor should it be relied upon as such by someone facing drug charges. Legal advice should only be obtained by a criminal defense attorney.

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