Search and seizure
Encyclopedia
Search and seizure is a legal procedure used in many civil law
and common law
legal systems whereby police
or other authorities and their agents, who suspect that a crime
has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.
Some countries have provisions in their constitution
s that provide the public with the right to be free from "unreasonable" search and seizure. This right is generally based on the premise that everyone is entitled to a reasonable right to privacy
.
Though interpretation may vary, this right sometimes requires law enforcement to obtain a search warrant
before engaging in any form of search and seizure. In cases where evidence is seized in a search, that evidence might be rejected by court procedures, such as with a motion to suppress
the evidence under the exclusionary rule
.
provides that:
The text of the amendment is brief, and most of the law determining what constitutes an unlawful search and seizure is found in court rulings. The general rule under the Constitution
is that a valid warrant is required for a valid search. There are, however, several exceptions to this rule, based on the language of the fourth amendment that "the people" are to be "secure ... against unreasonable searches and seizures".
For instance, the owner of the property in question may consent to the search
. The consent must be voluntary, but there is no clear test to determine whether or not it is; rather, a court will consider the "totality of the circumstances" in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he may refuse. There are also some circumstances in which a third party who has equal control, i.e. common authority, over the property may consent to a search.
When an individual does not possess a "reasonable expectation of privacy" that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search for Fourth Amendment purposes, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, the Court has held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.
There is also a lowered expectation of privacy inside of motor vehicles. This "automobile exception" has been summarized by St. Mary's University law scholar Professor Gerald Reamey in "Reamey's Rule" as "never, ever, ever put anything in your vehicle that you do not want the police to see". Nevertheless, a 'bright line' has been drawn at the doorstep of person's homes, however, so that whenever the government intrudes inside, their action is considered a search for Fourth Amendment purpose and must always be accompanied by a search warrant (absent exigent circumstances).
Courts have also established an "exigent circumstances" exception to the warrant requirement. "Exigent circumstances" simply means that the officers must act quickly. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed, but there is still a probable cause
requirement. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present. This includes when the police are in 'hot pursuit of a fleeing felon.' In this circumstance, so long as there is probable cause
, police may follow the suspect into a residence and seize any evidence in plain view.
Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches are called refined searches.
While the interpretations of the U.S. Supreme Court
are binding on all federal courts interpreting the U.S. Constitution, there is some variance in the specifics from state to state, for two reasons. First, if an issue has not been decided by the U.S. Supreme Court, then a lower court makes a ruling of "first impression" on the issue, and sometimes two different lower courts will reach different interpretations. Second, virtually all state constitutions also contain provisions regarding search and seizure. Those provisions cannot reduce the protections offered by the U.S. Constitution, but they can provide additional protections such that a search deemed "reasonable" under the U.S. Constitution might nonetheless be unreasonable under the law of a particular state.
The primary remedy in illegal search cases is known as the "exclusionary rule
". This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial. There are some narrow exceptions to this rule. For instance, if police officers acted in good faith—perhaps pursuant to a warrant that turned out to be invalid, but that the officers had believed valid at the time of the search—evidence may be admitted.
there has been an evolution of Supreme Court
interpretation in favor of stronger government in regards to investigatory power. In the Supreme Court
case Federal Trade Commission v. American Tobacco Co,, the federal court ruled that the FTC, while having been granted a broad subpoena power, did not have the right to a general "fishing expedition" into the private papers, to search both relevant and irrelevant, hoping that something would come up. Justice Holmes
ruled that this would go against "the spirit and the letter" of the Fourth Amendment.
Later, in the 1946 Oklahoma Press Pub. Co. v. Walling,, there was a distinction made between a "figurative or constructive search" and an actual search and seizure. The court held that constructive searches are limited by the Fourth Amendment
, where actual search and seizure requires a warrant
based on “probable cause
”. In the case of a constructive search where the records and papers sought are of corporate character, the court held that the Fourth Amendment
does not apply, since corporations are not entitled to all the constitutional protections created in order to protect the rights of private individuals.
US specific:
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems whereby police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
or other authorities and their agents, who suspect that a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s that provide the public with the right to be free from "unreasonable" search and seizure. This right is generally based on the premise that everyone is entitled to a reasonable right to privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
.
Though interpretation may vary, this right sometimes requires law enforcement to obtain a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
before engaging in any form of search and seizure. In cases where evidence is seized in a search, that evidence might be rejected by court procedures, such as with a motion to suppress
Motion to suppress
In common law legal systems, a motion to suppress is a formal, written request to a judge for an order that certain evidence be excluded from consideration by the judge or jury at trial...
the evidence under the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
.
United States
The Fourth Amendment to the United States ConstitutionFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
provides that:
The text of the amendment is brief, and most of the law determining what constitutes an unlawful search and seizure is found in court rulings. The general rule under the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
is that a valid warrant is required for a valid search. There are, however, several exceptions to this rule, based on the language of the fourth amendment that "the people" are to be "secure ... against unreasonable searches and seizures".
For instance, the owner of the property in question may consent to the search
Consent searches
Consent searches are searches made by United States law enforcement personnel based on the consent of the individual whose person or property is being searched.-Overview:...
. The consent must be voluntary, but there is no clear test to determine whether or not it is; rather, a court will consider the "totality of the circumstances" in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he may refuse. There are also some circumstances in which a third party who has equal control, i.e. common authority, over the property may consent to a search.
When an individual does not possess a "reasonable expectation of privacy" that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search for Fourth Amendment purposes, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, the Court has held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.
Courts have also established an "exigent circumstances" exception to the warrant requirement. "Exigent circumstances" simply means that the officers must act quickly. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed, but there is still a probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
requirement. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present. This includes when the police are in 'hot pursuit of a fleeing felon.' In this circumstance, so long as there is probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
, police may follow the suspect into a residence and seize any evidence in plain view.
Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches are called refined searches.
While the interpretations of the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
are binding on all federal courts interpreting the U.S. Constitution, there is some variance in the specifics from state to state, for two reasons. First, if an issue has not been decided by the U.S. Supreme Court, then a lower court makes a ruling of "first impression" on the issue, and sometimes two different lower courts will reach different interpretations. Second, virtually all state constitutions also contain provisions regarding search and seizure. Those provisions cannot reduce the protections offered by the U.S. Constitution, but they can provide additional protections such that a search deemed "reasonable" under the U.S. Constitution might nonetheless be unreasonable under the law of a particular state.
The primary remedy in illegal search cases is known as the "exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
". This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial. There are some narrow exceptions to this rule. For instance, if police officers acted in good faith—perhaps pursuant to a warrant that turned out to be invalid, but that the officers had believed valid at the time of the search—evidence may be admitted.
Figurative or constructive searches
In corporate and administrative lawAdministrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
there has been an evolution of Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
interpretation in favor of stronger government in regards to investigatory power. In the Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
case Federal Trade Commission v. American Tobacco Co,, the federal court ruled that the FTC, while having been granted a broad subpoena power, did not have the right to a general "fishing expedition" into the private papers, to search both relevant and irrelevant, hoping that something would come up. Justice Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
ruled that this would go against "the spirit and the letter" of the Fourth Amendment.
Later, in the 1946 Oklahoma Press Pub. Co. v. Walling,, there was a distinction made between a "figurative or constructive search" and an actual search and seizure. The court held that constructive searches are limited by the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
, where actual search and seizure requires a warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
based on “probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
”. In the case of a constructive search where the records and papers sought are of corporate character, the court held that the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
does not apply, since corporations are not entitled to all the constitutional protections created in order to protect the rights of private individuals.
See also
- FriskingFriskingFrisking is a search of a person's outer clothing wherein a person runs his or her hands along the outer garments to detect any concealed weapons or contraband.-Stop and frisk:...
- INTERPOLInterpolInterpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation...
- KGBKGBThe KGB was the commonly used acronym for the . It was the national security agency of the Soviet Union from 1954 until 1991, and was the premier internal security, intelligence, and secret police organization during that time.The State Security Agency of the Republic of Belarus currently uses the...
- Proactive policingProactive policingProactive policing is the theory and practice of engaging criminals before they commit a crime, thereby preventing crime from taking place in the first place. Police action after receiving a complaint or call for help from the public does not constitute proactive policing...
- Search of personsSearch of personsPolice officers in various jurisdictions have power to search members of the public, for example, for weapons, drugs and stolen property. This article concerns searches of members of the public who have not been arrested and who are not held in detention. For search powers in relation to those...
(UK) - Strip searchStrip searchA strip search is the stripping of a person to check for weapons or other contraband.-Legality of strip searches:...
US specific:
- Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
- No-knock warrant
- DEADEADEA is the commonly used acronym for the Drug Enforcement Administration, a United States law enforcement agency.DEA or Dea may also refer to:- Organizations :* DEA , UK development education charity...
- FBI
- Immigration and Customs Enforcement (ICE)
- United States Border PatrolUnited States Border PatrolThe United States Border Patrol is a federal law enforcement agency within U.S. Customs and Border Protection , a component of the Department of Homeland Security . It is an agency in the Department of Homeland Security that enforces laws and regulations for the admission of foreign-born persons to...
- United States Customs and Border Protection (CBP)
- United States Marshals ServiceUnited States Marshals ServiceThe United States Marshals Service is a United States federal law enforcement agency within the United States Department of Justice . The office of U.S. Marshal is the oldest federal law enforcement office in the United States; it was created by the Judiciary Act of 1789...
- United States Secret ServiceUnited States Secret ServiceThe United States Secret Service is a United States federal law enforcement agency that is part of the United States Department of Homeland Security. The sworn members are divided among the Special Agents and the Uniformed Division. Until March 1, 2003, the Service was part of the United States...
- Search and Seizure Law in PennsylvaniaSearch and Seizure Law in PennsylvaniaThe law of search and seizure in Pennsylvania is controlled by both the United States Constitution and the broader protections of the Pennsylvania Constitution. This article is concerned only with the protections provided by the Pennsylvania Constitution....