Search and seizure

In counterinsurgency operations, the procedure for entering a village or area suspected of harboring insurgents or their supplies, searching the area, and arresting suspected insurgents and confiscating any suspect materiel.

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The 4th Amendment to the U.S. Constitution says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The principle in the 4th Amendment is clear: the privacy of the individual is protected against arbitrary intrusion by agents of the government. In 1949 Justice Felix Frankfurter wrote (Wolf v. Colorado): “The security of one's privacy against arbitrary intrusion by the police is basic to a free society. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.”

The 4th Amendment protection against unreasonable searches and seizures is reinforced by the clause that requires a warrant, or court authorization, for such searches and seizures. A warrant should not be issued, of course, unless there is a finding of “probable cause” by a neutral magistrate or judge.

The 4th Amendment principle of personal security against unlawful intrusion is clear enough. But the exact meaning of the key phrases and their precise application in specific cases requires interpretation and judgment—the duties of the federal courts. What constitutes “unreasonable searches and seizures”? What exactly is the meaning of “probable cause”? Are there any situations that justify a warrantless search by government officials? If so, what are they, and what are the justifications?

In making judgments about 4th Amendment rights, the federal courts attempt to balance liberty and order—the rights of the individual to freedom from tyranny and the needs of the community for stability, security, and safety. Judges must decide when to provide more or less latitude for the rights of individuals suspected of criminal behavior.

The Supreme Court ruled on what is “unreasonable” in Weeks v. United States (1914). Evidence seized illegally by federal government agents—without probable cause or a search warrant—must be excluded from a defendant's trial, according to the Court. This exclusionary rule applied, however, only to federal government officials. The Court did not establish the exclusionary rule as a limitation on state governments until 1961, in Mapp v. Ohio.

The Supreme Court established a “good faith” exception to the exclusionary rule in United States v. Leon (1984). The Court ruled that evidence seized as the result of a mistakenly issued search warrant can be used in a trial as long as the warrant was issued on good faith that there was probable cause for issuing it.

Judges, not law enforcement officers, are supposed to determine whether or not there is probable cause for issuing a search warrant. Evidence seized by police with a valid search warrant can, of course, be used against the defendant in a trial. There are, however, exceptions to the requirement of a warrant to justify a search and seizure of evidence. The Supreme Court ruled, for example, in Terry v. Ohio (1968) that police may stop and search a suspect's outer clothing for a gun or other weapons without a warrant if they suspect a crime is about to be committed. Further, police may stop and search automobiles without first obtaining a warrant if they have a reasonable suspicion that illegal goods are inside or that illegal actions are about to take place

The Evolution of the 4th Amendment Rights
• Weeks v. United States (1914) A person may require that evidence obtained in a search shall be excluded from use against him in a federal court if the evidence was seized illegally—without probable cause or a search warrant.
• Carroll v. United States (1925) Federal agents can conduct searches of automobiles without a warrant whenever they have a reasonable suspicion of illegal actions.
• Olmstead v. United States (1928) Wiretaps by federal agents are permissable where no entry of private premises has occurred.
• Wolf v. Colorado (1949) The 4th Amendment protections apply to searches by state officials as well as federal agents. However, state judges are not required to exclude evidence obtained by searches in violation of 4th Amendment rights.
• Mapp v. Ohio (1961) Evidence obtained in violation of 4th Amendment rights must be excluded from use in state and federal trials.
• Katz v. United States (1967) Electronic surveillance and wiretapping are within the scope of the 4th Amendment because it protects whatever an individual wants to preserve as private, including conversations and behavior, even in a place open to the public.
• Terry v. Ohio (1968) The police may stop and frisk, or search, a suspect's outer clothing for dangerous weapons without first obtaining a warrant if they suspect that a crime is about to be committed.
• Chimel v. California (1969) Police may search without a warrant only the immediate area around the suspect from which he could obtain a weapon or destroy evidence. But a person's entire dwelling cannot be searched merely because he is arrested there.
• Marshall v. Barlow's, Inc. (1978) Federal laws cannot provide for warrantless inspections of businesses that are otherwise legally regulated by a federal agency. A federal inspector must obtain a search warrant when the owner of the business to be inspected objects to a warrantless search.
• United States v. Ross (1982) Police officers may search an entire vehicle they have stopped without obtaining a warrant if they have probable cause to suspect that drugs or other contraband is in the vehicle.
• United States v. Leon (1984) Evidence seized on the basis of a mistakenly issued search warrant can be introduced in a trial if the warrant was issued in good faith—that is, on presumption that there were valid grounds for issuing the warrant.
• New Jersey v. T.L.O. (1985) School officials do not need a search warrant or probable cause to conduct a reasonable search of a student. The school officials may search a student if there are reasonable grounds for suspecting that the search will uncover evidence that the student has violated or is violating either the law or the rules of the school.
• California v. Greenwood (1988) The police may search through garbage bags and other trash containers that people leave outside their houses in order to obtain evidence of criminal activity. This evidence may subsequently be used as the basis for obtaining a warrant to search a person's house.
• Michigan v. Sitz (1990) The police may stop automobiles at roadside checkpoints and examine the drivers for signs of intoxication. Evidence obtained in this manner may be used to bring criminal charges against the driver.
• Minnesota v. Dickerson (1993) Police do not need a warrant to seize narcotics that were found when frisking or quickly searching a suspect for concealed weapons. Evidence seized in this way can be used to bring criminal charges against a suspect.
• Vernonia School District v. Acton (1995) Public school officials may carry out a policy of drug testing for students involved in interschool athletic programs
• Wilson v. Arkansas (1995) Police must announce themselves before entering a premises. If the knock and announce rule is violated, then an otherwise warranted search is invalidated.
• Chandler v. Miller (1997) State laws cannot require candidates for public offices to be tested for drugs. This requirement constitutes an unreasonable search.
• Maryland v. Wilson (1997) When making a traffic stop, police may order a passenger as well as a driver out of the vehicle without requiring either probable cause or reasonable suspicion.
• Illinois v. Wardlow (2000) Unprovoked flight by a suspect at the mere sight of a police officer may, in the context of other compelling factors, provide the “reasonable suspicion” necessary to justify a “stop-and-frisk” search of the person.
• Bond v. United States (2000) Without “reasonable suspicion” of illegal behavior, law enforcement officers cannot move down the aisle of a bus and squeeze baggage stored in overhead racks to find out if any contain illegal contents. Such behavior violates a passenger's 4th Amendment rights.

The accompanying table of cases on 4th Amendment rights demonstrates the evolution of constitutional rights in the 20th century. As it shows, the incorporation of the 4th Amendment into the due process clause of the 14th Amendment did not occur until 1949, in the case of Wolf v. Colorado. Since that time, however, most of the 4th Amendment cases have involved actions at the state level of government. On balance, decisions in these cases have gradually enhanced the rights of individuals against the power of government.

See also Bill of Rights; Exclusionary rule; Incorporation doctrine; Katz v. United States; Mapp v. Ohio; New Jersey v. T.L.O.; Olmstead v. United States; Probable cause; Terry v. Ohio; United States v. Leon; United States v. Ross; Weeks v. United States; Wolf v. Colorado

In international law, the right of ships of war, as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure.

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property.

Search and seizure is a necessary exercise in the ongoing pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. Under federal, state, and local laws, a police officer may search people and places when the officer has probable cause to suspect criminal activity. This means that the officer must possess sufficient trustworthy facts to believe that a crime has been committed. In some cases, an officer may need only a reasonable suspicion of criminal activity to conduct a limited search. Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. This level of knowledge is less than that of probable cause, so reasonable suspicion is usually used to justify a brief frisk in a public area. To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion. Items related to suspected criminal activity found in a search may be taken, or seized, by the officer.

Under the Fourth Amendment, seizure also refers to the taking, or arrest, of persons. An arrest occurs when a police officer takes a person against his or her will for questioning or criminal prosecution. To make an arrest, an officer must have probable cause.

A warrant is not generally required for an arrest, except for an arrest in the home. A seizure may be less than an arrest, such as an investigatory stop. Investigatory stops are used by police to briefly detain, frisk, and question persons in public. This is permissible where an officer has reasonable suspicion to believe that a person has committed or is committing a crime.

Search and seizure law generally refers to the search of persons and places and the seizure of evidence by law enforcement officials. It does not refer to searches carried out by private parties. Evidence of a crime acquired by a private party and given unsolicited to a police officer may be used in a criminal trial. Many searches conducted by private parties — such as drug tests by employers — can be intrusive, but the law provides limited protection from these intrusions.

The police have the power to search and seize, but individuals are protected against arbitrary, unreasonable police intrusions. Freedom from unrestricted search warrants was critical to American colonists. Under England's rule, many searches were unlimited in scope and conducted without justification. Customs officials could enter the homes of colonists at will to search for violations of customs and trade laws, and suspicionless searches were carried out against outspoken political activists. Searches in the colonies came to represent governmental oppression.

To guard against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S. Constitution's Fourth Amendment, which states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Like much of the Constitution, the Fourth Amendment left ample room for interpretation. Over the years the U.S. Supreme Court has held it to mean that unreasonable searches are prohibited, and that any search conducted by or at the direction of law enforcement personnel without a warrant is unreasonable unless it falls within an established exception.

A search warrant is a judicially approved document that authorizes law enforcement officials to search a particular place. To obtain a search warrant, a police officer must provide an account of information supporting probable cause to believe that evidence of a crime will be found in a particular place or places. The officer must also make a list of the particular places to be searched and the items sought. Finally, the officer must swear to the truthfulness of the information. The officer presents the information in an affidavit to a magistrate or judge, who determines whether to approve the warrant.

An officer may search only the places where items identified in the search warrant may be found. For example, if the only item sought is a snowmobile, the officer may not rummage through desk drawers. Only the items listed in the warrant may be seized, unless other evidence of illegal activity is in plain view. Judges or magistrates may approve a variety of types of searches. The removal of blood from a person's body, a search of body cavities, and even surgery may be approved for the gathering of evidence. Electronic surveillance and phone records may also be used to gather evidence upon the issuance of a warrant.

A warrant is not required for a search incident to a lawful arrest, the seizure of items in plain view, a border search, a search effected in open fields, a vehicle search, an inventory search of an impounded vehicle, and any search necessitated by exigent circumstances. It is also not required for a stop and frisk, a limited search for weapons based on a reasonable suspicion that the subject has committed or is committing a crime. A police officer may also conduct a warrantless search if the subject consents.

In theory, the Fourth Amendment protects a person's right to privacy. Thus, search warrants are required only for items or qualities in which a person has a reasonable expectation of privacy. A person has no reasonable expectation of privacy in things like bank records, vehicle location and vehicle paint, garbage left for collection, handwriting, the smell of luggage, and land visible from a public place; the police may therefore inspect such things without acquiring a warrant.

Administrative agencies may conduct warrantless searches of highly regulated industries, such as strip mining and food service. Federal and state statutes authorize warrantless, random drug testing of persons in sensitive positions, such as air traffic controllers, drug interdiction officers, railroad employees, and customs officials.

The U.S. Supreme Court has approved warrantless, suspicionless searches at roadside sobriety checkpoints. These searches must be carried out in some neutral, articulable way, such as by stopping every fifth car. Warrantless searches of public housing projects have been ruled unconstitutional. Similar searches continue as legislators and police officers test the boundaries of the Fourth Amendment.

Warrant exceptions have been carved out by courts because requiring a warrant in certain situations would unnecessarily hamper law enforcement. For example, it makes little sense to require an officer to obtain a search warrant to seize contraband that is in plain view. However, if the officer has gained unwarranted access to the plain view — for example, by entering a home without permission or a warrant — he may not thereafter seize the contraband.

The law of search and seizure is often more theoretical than practical. In practice, police officers generally seize evidence of illegal activity and leave the parsing of their actions to prosecutors, criminal defense attorneys, and, ultimately, the court. When a judge deems a search unreasonable, she frequently applies the exclusionary rule.

For the entire nineteenth century, a Fourth Amendment violation had little consequence. Evidence seized by law enforcement from a warrantless or otherwise unreasonable search was admissible at trial if the judge found it reliable. This made the Fourth Amendment essentially meaningless to criminal defendants.

In 1914, the U.S. Supreme Court devised a way to enforce the Fourth Amendment. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search and seizure. Weeks's conviction was reversed, and thus was born the exclusionary rule.

The warrant requirement and the exclusionary rule are the only judicial checks on law enforcement's power to search and seize. The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. Without the evidence, the prosecutor may lose the case or drop the charges for lack of proof. This rule provides some substantive protection against illegal search and seizure.

The exclusionary rule was constitutionally required only in federal court until Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment. Before the Mapp ruling, not all states excluded evidence obtained in violation of the Fourth Amendment. After Mapp, a defendant's claim of unreasonable search and seizure became commonplace in criminal prosecutions.

The application of the exclusionary rule has been significantly limited by a good faith exception created by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Under the good faith exception, evidence obtained in violation of a person's Fourth Amendment rights will not be excluded from trial if the law enforcement officer, though mistaken, acts reasonably. For example, if an officer reasonably conducts a search relying on information that is later proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information. The Supreme Court has carved out this exception to the exclusionary rule because, according to a majority of the court, the rule was designed to deter police misconduct, and excluding evidence when the police did not misbehave would not deter police misconduct.

A companion to the exclusionary rule is the fruit of the poisonous tree doctrine, established by the Supreme Court in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search. For example, assume that an illegal search has garnered evidence of illegal explosives. This evidence is then used to obtain a warrant to search the suspect's home. The exclusionary rule excludes the evidence initially used to obtain the search warrant, and the fruit of the poisonous tree doctrine excludes any evidence obtained in a search of the home.

A criminal defendant's claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding judge. This hearing is conducted before trial to determine what evidence will be suppressed, or excluded, from trial.

See: Alcohol; Automobiles; Criminal Law; Criminal Procedure; Drugs and Narcotics; Due Process of Law; Mapp v. Ohio; Olmstead v. United States; Plain View Doctrine; Terry v. Ohio; Warren Court; Wiretapping.

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Criminal procedure

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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.

Most countries have provisions in their constitutions 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. These constitutional rights are respected in democracies.

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 or by the exclusionary rule.

Contents 1 Canada 2 United States 3 Figurative or Constructive Searches 4 See also 5 Notes 6 References

Canada

In Canada, Section Eight of the Canadian Charter of Rights and Freedoms protects all individuals from unreasonable search and seizure. For a search to be "reasonable" it must be authorized by law, the law itself must be reasonable, and the manner in which the search was carried out must be reasonable (R. v. S.A.B., 2003 SCC 60). This means that the officer must be acting within the power of a valid statute, and it must be performed on the basis of there being "reasonable and probable grounds" that a crime has been committed.

United States

Dareton police search the vehicle of a suspected drug smuggler in Wentworth, in the state of New South Wales, Australia, near the border with Victoria

The Fourth Amendment to the United States Constitution provides that:

“

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

”

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.

DEA investigators found $5.6 million hidden in a ceiling compartment of a truck during a seizure (Operations Reciprocity, 1997)

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. 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.

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.

Further, under the "fruit of the poisonous tree" doctrine, additional evidence discovered as a result of illegally obtained evidence is also inadmissible.

Forfeiture laws are covered under Title 18, part I, chapter 46 of the United States Code.

Figurative or Constructive Searches

In corporate and administrative law there has been an evolution of Supreme Court interpretation in favor of stronger government in regards to investigatory power.^[1] In the Supreme Court case Federal Trade Commission v. American Tobacco Co,^[2], 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 "the spirit and the letter" of the Fourth Amendment.

Later, in the 1946 Oklahoma Press Pub. Co. v. Walling,^[3], 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.

See also

• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
• No-knock warrant
• DEA
• FBI
• Frisking
• Immigration and Customs Enforcement (ICE)
• INTERPOL
• United States Border Patrol
• United States Customs and Border Protection (CBP)
• United States Marshals Service
• United States Secret Service

Notes

1. ^ Barry, Donald D., and Howard R. Whitcomb, The legal foundations of public administration (Lanham, Md: Rowman & Littlefield Publishers), 122.
2. ^ 264 U.S. 298
3. ^ 327 U.S. 186

References

* The U.S. Constitution. Founding Fathers. (1787).

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