Search and seizure

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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. Vehicle drug search australia.jpg
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.

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.

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Some countries have certain provisions in their constitutions that provide the public with the right to be free from "unreasonable searches and seizures". This right is generally based on the premise that everyone is entitled to a reasonable right to privacy.

Though specific interpretation may vary, this right can often require law enforcement to obtain a search warrant or consent of the owner 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.

Italy

In Italy protection from search and seizure is enshrined in Article 14 of the Constitution, which states: [1]

"The home is inviolable. Home inspections, searches, or seizures shall not be admissible save in the cases and manners complying with measures to safeguard personal liberty. Controls and inspections for reason of public health and safety, or for economic and fiscal purposes, shall be regulated by appropriate laws."

New Zealand

Section 21 of the New Zealand Bill of Rights Act 1990 (NZBoRA 1990) incorporates this right into New Zealand law, stating that: "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."

While the NZBORA 1990 establishes the overall right to be free from unreasonable search and seizure the Search and Surveillance Act 2012 provides the statutory framework for the practical application of the law in this area in New Zealand. The right to protection from unreasonable search and seizure is routinely ignored by the State, [2] which is able to exercise unlimited powers of search and seizure against private individuals. The only remedy is to seek to have whatever evidence may have been unreasonably obtained omitted from proceedings under the Evidence Act procedures. [3] This means that in practice there is only limited protection against the use of unreasonably obtained evidence, but no protection against actual unreasonable search and seizure in New Zealand.

United Kingdom

Historically, English common law made use of a number of different types of legal writs to effect seizures for various reasons. For example, a writ of arrestandis bonis ne dissipentur provided for the seizure of goods when it was found likely they would not be properly cared for during a court case to settle ownership. [4] A writ of attachiamenta bonorum allowed for the seizure of personal property to recover a debt. [5]

In relation to criminal investigations, the police have a range of powers to search people and places without first making an arrest, often described as "stop and search". The United Kingdom has several different legal systems and the powers and procedure for stop and search varies depending on the jurisdiction:

United States

The Fourth Amendment of the United States Constitution states 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. [6]

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 brief definitions of the terms "search" and "seizure" was concisely summarized in United States v. Jacobsen , which said that the Fourth Amendment:

protects two types of expectations, one involving "searches", the other "seizures". A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A seizure of property occurs where there is some meaningful interference with an individual's possessory interests in that property. [7]

Warrant requirement

The general rule under the United States Constitution is that a valid warrant is required for a 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 technically required to advise a suspect that he may refuse, however this policy depends on the specific rules of the department. 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. Another example of unreasonable search and seizure is in the court case Mapp v. Ohio . [8]

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. [9]

DEA investigators found $5.6 million hidden in a ceiling compartment of a truck during a seizure (Operations Reciprocity, 1997). DEA Operation Reciprocity - money seizure.png
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. [10] However, Coolidge v. New Hampshire dictates that "the word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." [11]

Exceptions to the warrant requirement

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 may be referenced as refined searches. [12]

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.

Violation of the warrant requirement

There are several areas of analysis that courts use to determine whether a search has encroached upon constitutional protections. Only those searches that meet with certainty each of the minimal measured requirements of the following four doctrines are likely to stand unchallenged in court. [13] Those qualifying doctrines are reasonableness, [14] probable cause, [15] judicial authority, [16] and particularity. [17] While police judgment just before or during the course of a search or arrest usually provides the factors that determine reasonableness, matters of probable cause, judicial authority, and particularity requirements are commonly met through police procedures that are overseen by a court judge or magistrate prior to any search or arrest being conducted. Probable cause requires an acceptable degree of justified suspicion. Particularity requirements are spelled out in the constitution text itself. Law enforcement compliance with those requirements is scrutinized prior to the issuance of a warrant being granted or denied by an officiating judicial authority. [16]

Exclusionary rule

The primary remedy in illegal search cases is known as the "exclusionary rule". [18] 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.

Administrative 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. [19] [20] In Federal Trade Commission v. American Tobacco Co., [21] the Supreme 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.

In the 1946 case of Oklahoma Press Pub. Co. v. Walling, [22] 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

US specific:

Related Research Articles

<span class="mw-page-title-main">Fourth Amendment to the United States Constitution</span> 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, a search warrant cannot be issued in aid of civil process.

In United States criminal law, probable cause is the legal standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal and for a court's issuing of a search warrant. One definition of the standard derives from the U.S. Supreme Court decision in the case of Beck v. Ohio (1964), that probable cause exists when “at [the moment of arrest] the facts and circumstances within [the] knowledge [of the police], and of which they had reasonably trustworthy information, [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”

Terry v. Ohio, 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Specifically, the decision held that a police officer does not violate the Fourth Amendment to the U.S. Constitution's prohibition on unreasonable searches and seizures when questioning someone even though the officer lacks probable cause to arrest the person, so long as the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. The court also ruled that the police officer may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is "armed and presently dangerous." This reasonable suspicion must be based on "specific and articulable facts," and not merely upon an officer's hunch.

In criminal procedure law of the United States, an exigent circumstance allows law enforcement to enter a structure without a search warrant, or if they have a "knock and announce" warrant, allows them to enter without knocking and waiting for the owner's permission to enter. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect's escape is imminent. Once entry is obtained, the plain view doctrine applies, allowing the seizure of any evidence or contraband discovered in the course of actions consequent upon the exigent circumstances.

United States v. Place, 462 U.S. 696 (1983), is a decision by the Supreme Court of the United States in which the Court held that it does not violate the Fourth Amendment to the U.S. Constitution for a trained police dog to sniff of a person's luggage or property in a public place.

<span class="mw-page-title-main">Knock-and-announce</span> United States law criminal procedure

Knock-and-announce, in United States law criminal procedure, is an ancient common law principle, incorporated into the Fourth Amendment, which requires law enforcement officers to announce their presence and provide residents with an opportunity to open the door prior to a search.

Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

In United States constitutional law, expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the U.S. Constitution. It is related to, but is not the same as, a right to privacy, a much broader concept which is found in many legal systems. Overall, expectations of privacy can be subjective or objective.

Illinois v. Caballes, 543 U.S. 405 (2005), is a decision by the Supreme Court of the United States in which the Court held that the use of a drug-sniffing police dog during a routine traffic stop does not violate the Fourth Amendment to the U.S. Constitution, even if the initial infraction is unrelated to drug offenses.

South Dakota v. Opperman, 428 U.S. 364 (1976), elaborated on the community caretaking doctrine. Under the Fourth Amendment, "unreasonable" searches and seizures are forbidden. In addition to their law-enforcement duties, the police must engage in what the court has termed a community caretaking role, including such duties as removing obstructions from roadways to ensure the free flow of traffic. When the police act in this role, they may inventory cars they have seized without "unreasonably" searching those cars.

Suppression of evidence is a term used in the United States legal system to describe the lawful or unlawful act of preventing evidence from being shown in a trial. This could happen for several reasons. For example, if a judge believes that the evidence in question was obtained illegally, the judge can rule that it not be shown in court. It could also refer to a prosecutor improperly or intentionally hiding evidence that does not go with their case and could suggest or prove to the judge or jury that the defendant is not guilty or that (s)he is legally obligated to show the defense. In the latter case, this would be a violation of the 5th amendment to the United States Constitution. Also Rule 3.8 of the ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigates the offense." This can result in a mistrial in the latter case and/or the dismissal of the prosecutor.

In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Generally speaking, searches within 100 miles (160 km) of the border are more permissible without a warrant than those conducted elsewhere in the U.S. The doctrine also allows federal agents to search people at border crossings without a warrant or probable cause. The government is allowed to use scanning devices and to search personal electronics. Invasive bodily searches, however, require reasonable suspicion.

Welsh v. Wisconsin, 466 U.S. 740 (1984), was a 1983 case before the US Supreme Court determining that a warrantless home arrest without exigent circumstances violates the Fourth Amendment protection against unlawful search and seizure.

State v. Reid, 194 N.J. 386, 954 A.2d 503, was an American criminal court case in which the New Jersey Supreme Court ruled that Internet service provider (ISP) subscribers have a reasonable expectation of privacy in the identifying information they provide to ISPs. This case has helped place New Jersey at the forefront of the states committed to providing their residents with broader privacy protections than those available under federal law.

The 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.

Kentucky v. King, 563 U.S. 452 (2011), was a decision by the US Supreme Court, which held that warrantless searches conducted in police-created exigent circumstances do not violate the Fourth Amendment as long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.

United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

Soldal v. Cook County, 506 U.S. 56 (1992), was a United States Supreme Court case in which the Court held that a seizure of property like that which occurs during an eviction, even absent a search or an arrest, implicates the Fourth Amendment. The Court also held that the Amendment protects property as well as privacy interests, in both criminal as well as civil contexts. Finally, saying that "certain wrongs affect more than a single right", the Court left open the possibility that the Fourteenth Amendment's protections against deprivation of property without due process of law may also be implicated.

Digital Search and Seizure refers to the ability of the United States Government to obtain and read an individual's private digital correspondence and material under The Fourth Amendment of the United States Constitution.

References

  1. ↑ "The Italian Constitution". The official website of the Presidency of the Italian Republic.
  2. ↑ Review of the Search and Surveillance Act 2012: Issues Paper (PDF). Wellington: New Zealand Law Commission. November 2016. p. 29-39. ISBN   978-1-877569-77-7 . Retrieved October 4, 2024.
  3. ↑ Evidence Act 2006, s30 (5).
  4. ↑ "History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Arboreus – artery". digicoll.library.wisc.edu. Retrieved April 6, 2017.
  5. ↑ "History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Attachiamenta – azymus". digicoll.library.wisc.edu. Retrieved April 6, 2017.
  6. ↑ "U.S. Const. amend. IV". Official Bill of Rights in the National Archives. U.S. National Archives . Retrieved November 23, 2012.
  7. ↑ Jacobson v. United States, 466 U.S. 109, 113 (1984)
  8. ↑ "Mapp v. Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)". Google Scholar. Retrieved September 11, 2017.
  9. ↑ Wilkins, Richard G. (1987). "Defining the reasonable expectation of privacy: an emerging tripartite analysis". Vanderbilt Law Review. 40: 1077.
  10. ↑ Sklansky, David A. (January 1, 1997). "Traffic stops, minority motorists, and the future of the Fourth Amendment" (PDF). The Supreme Court Review. 1997: 271. doi:10.1086/scr.1997.3109744. S2CID   142595666 . Retrieved September 11, 2017.
  11. ↑ "Coolidge v. New Hampshire, 403 U.S. 443 (1971)".
  12. ↑ Heder, Bill O. (1999). "The Development of Search and Seizure Law in Public Schools". Brigham Young University Education and Law Journal. 1999: 71. Retrieved September 11, 2017.
  13. ↑ Whitebread, Charles H. (2000). Criminal Procedure: An Analysis of Cases and Concepts. / Edition 5. MN: Foundation Press/ West Academic. p. 1019.
  14. ↑ Regina v Smith, 4AER289 (2000)("[sub-citing Camplin and Bedder:] the concept of the 'reasonable man' has never been more than a way of explaining the law to a jury; an anthropomorphic image to convey to them, with a suitable degree of vividness, the legal principle that even under provocation, people must conform to an objective standard of behaviour that society is entitled to expect").
  15. ↑ Brinegar v. United States , 338 U.S. 160 (1949).
  16. 1 2 AO 93 (Rev. 12/09) Search and Seizure Warrant Archived April 7, 2010, at the Wayback Machine . Uscourts.gov.
  17. ↑ Gryzlo, Joseph P. (2016). A Balancing Act: Fourth Amendment Protections and the Reasonable Scope of Government Investigatory Access to E-Mail Accounts. John's L. p. 495.
  18. ↑ Loewenthal, Milton A. (October 1, 1980). "Evaluating the Exclusionary Rule in Search and Seizure". Anglo-American Law Review. 9 (4): 238. doi:10.1177/147377958000900403. S2CID   157351521.
  19. ↑ Primus, Eve B. (March 2011). "Disentangling Administrative Searches". Columbia Law Review. 111 (2): 254–312. JSTOR   29777196.
  20. ↑ Barry, Donald D., and Howard R. Whitcomb, The legal foundations of public administration (Lanham, Md: Rowman & Littlefield Publishers), 122.
  21. ↑ Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924)
  22. ↑ Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946)
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