Newsletter

Search & Seizure Protections

The Fourth Amendment of the Constitution protects an individual against unreasonable searches and seizure of his or her person or property. A search may involve an inspection of the person or his or her surroundings or property. Government authorities may seize individuals by stopping them or otherwise restricting their movements. Property is seized when the government takes control of it. Usually, but not always, if a seizure of property is invalid, it is because the seizure was preceded by an invalid search.

In the seizure of persons there has been considerable litigation involving when the government (usually the police) can restrict someone's movement. Police interactions with individuals may range from an investigatory stop to a full-blown arrest. The more freedom retained by the person when the police interact with him or her, the lower the level of suspicion required for the police to engage in that interaction. For example, if police merely stop someone to ask questions, all that is usually required is that the police have a reasonable suspicion that a crime has occurred or that the person is in need of assistance. If there is no control and a person is really free to leave, there is no seizure. However, in many instances where the police stop a person, that person has a reasonable perception that he or she is not free to leave. The first question may then be whether there actually was a seizure.

If a person is subject to seizure, such as an arrest, that seizure can be made pursuant to a warrant. A warrant is a court order authorizing an arrest or search. Where there is a warrant, the seizure is presumptively valid. The presumption of validity can sometimes be overcome. For example, a warrant may be invalid if it was obtained by false or misleading statements to the judge. If the police do not have a warrant, the burden will be on the police to show that the circumstances warranted the seizure. In most instances, the police will have to demonstrate probable cause, that is, a reasonable belief that a crime was or is going to be committed and that the person seized was involved in the crime.

If an arrest or other seizure of the person is invalid, then the person must be released. If the police obtained evidence as a result of the invalid arrest, the government may be prohibited from using that evidence at the person's trial. This is the exclusionary rule. This rule also applies to evidence that was obtained as the result of an invalid search.

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A search does not take place unless the investigation intrudes on a person's privacy. It seems clear there is no search if the police find something lying on the sidewalk or hanging out of someone's pocket. On the other extreme, if they look in a bedroom drawer, it seems pretty clearly to be a search. The distinction lies in the reasonable expectation of privacy. If someone has a reasonable expectation of privacy in an area of his or her person or property, police investigation of that area is a search. If there is no such expectation, or if the expectation is not reasonable, no search has been conducted.

A search warrant must describe the area to be searched and what the police are searching for. The search must be reasonable in relation to the evidence sought. For example, if the police claim to be searching for a car, they can look in a garage but will not be able to look in a toolbox in the garage.

Searches can also be valid if they are done with the consent of someone who has control of the property. This need not be the owner. During an arrest, police can search the arrestee and the immediate surroundings to search for weapons or evidence that might be destroyed. Following similar reasoning, police may search without a warrant where the search is necessary to protect against destruction or removal of evidence. This is a commonly used exception to the warrant requirement. Police may also conduct searches to protect the public from imminent danger, such as the planting of a bomb, or to search for fleeing criminals.

Form: Invasion of Privacy

PDF Icon You are welcome to the PDF version of this checklist: Invasion of Privacy (22kb)

DISCLAIMER: This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.