Search and seizure
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Search and seizure is a procedure used in many civil law and
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
legal systems by which
police The police are Law enforcement organization, a constituted body of Law enforcement officer, people empowered by a State (polity), state with the aim of Law enforcement, enforcing the law and protecting the Public order policing, public order ...
or other authorities and their agents, who, suspecting that a
crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime. Some countries have certain provisions in their
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
s 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 The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. Since the globa ...
. Though specific interpretation may vary, this right can often require
law enforcement Law enforcement is the activity of some members of the government or other social institutions who act in an organized manner to enforce the law by investigating, deterring, rehabilitating, or punishing people who violate the rules and norms gove ...
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 Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...
protection from search and seizure is enshrined in Article 14 of the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
, which states: "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

There is little to no protection from unreasonable search and seizure in New Zealand. Section 21 of the New Zealand Bill of Rights Act 1990 (NZBoRA 1990) incorporates the right to be free from unreasonable search and seizure into
New Zealand law The law of New Zealand uses the English common law system, inherited from being a part of the British Empire. There are several sources of law, the primary ones being acts enacted by the New Zealand Parliament and case law made by decisions o ...
, stating that: ''"Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."'' However, Section 4 of the Act explicitly denies the Bill of Rights supremacy over other legislation. The result is that the right to protection from unreasonable search and seizure is routinely ignored by the State, which is able to exercise sweeping powers of search and seizure against private individuals. This has been reinforced further by courts delineating unreasonableness versus unlawfulness, making it possible that, for example, a lawful search can be unreasonable. The only remedy available to individuals who have experienced an unreasonable search and seizure is to seek to have evidence excluded from proceedings under the Evidence Act procedures. However, there is no statutory remedy or recourse for search and seizures which do not yield any evidence, and only rarely are civil damages awarded to individuals who can afford to file lawsuits for compensation.


United Kingdom

Historically,
English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality bef ...
made use of a number of different types of legal
writ In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrant (legal), Warrants, prerogative writs, subpoenas, and ''certiorari'' are commo ...
s 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. A writ of ''
attachiamenta bonorum ''Attachiamenta bonorum'', in ancient law books, denotes an attachment of chattels to recover a personal debt Debt is an obligation that requires one party, the debtor, to pay money Loan, borrowed or otherwise withheld from another part ...
'' allowed for the seizure of
personal property Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law (legal system), civil law systems, personal property is often called movable property or movables—a ...
to recover a debt. In relation to criminal investigations, the police have a range of powers to search people and places without first making an
arrest An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be question ...
, 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: * in
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
* in
Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...


United States

The Fourth Amendment of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
states 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 brief definitions of the terms "search" and "seizure" was concisely summarized in '' United States v. Jacobsen'', which said that the Fourth Amendment: As recently as 2012, the United States Supreme Court has clarified that the "reasonable expectation of privacy test" for searches "has been ''added to'', but not ''substituted for'', the common-law trespassory test," meaning that
property rights The right to property, or the right to own property (cf. ownership), is often classified as a human right for natural persons regarding their Possession (law), possessions. A general recognition of a right to private property is found more rarely ...
establish a baseline level of Fourth Amendment protection.


Warrant requirement

The general rule under the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
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''. 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 In common law, the curtilage of a house or dwelling is the land immediately surrounding it, including any closely associated buildings and structures, but excluding any associated " open fields beyond". In feudal times every castle with its depen ...
of a home. There is also a lowered expectation of privacy inside of motor vehicles. However, ''
Coolidge v. New Hampshire ''Coolidge v. New Hampshire'', 403 U.S. 443 (1971), was a United States Supreme Court case dealing with the Fourth Amendment and the automobile exception. The state sought to justify the search of a car owned by Edward Coolidge, suspected of ...
'' dictates that "the word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."


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 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 standar ...
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 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 standar ...
, 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. 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. Those qualifying doctrines are reasonableness, probable cause, judicial authority,AO 93 (Rev. 12/09) Search and Seizure Warrant
. Uscourts.gov.
and particularity. 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.


Exclusionary rule

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.


Administrative searches

In corporate and
administrative law Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...
, there has been an evolution of
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
interpretation in favor of stronger government in regards to investigatory power. In ''Federal Trade Commission v. American Tobacco Co.'', the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
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'',''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 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 standar ...
”. 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 A corporation or body corporate is an individual or a group of people, such as an association or company, that has been authorized by the State (polity), state to act as a single entity (a legal entity recognized by private and public law as ...
are not entitled to all the constitutional protections created in order to protect the rights of private individuals.


See also

* Frisking *
INTERPOL The International Criminal Police Organization – INTERPOL (abbreviated as ICPO–INTERPOL), commonly known as Interpol ( , ; stylized in allcaps), is an international organization that facilitates worldwide police cooperation and crime cont ...
*
KGB The Committee for State Security (, ), abbreviated as KGB (, ; ) was the main security agency of the Soviet Union from 1954 to 1991. It was the direct successor of preceding Soviet secret police agencies including the Cheka, Joint State Polit ...
* Proactive policing * Search of persons (UK) * Search warrant * Strip search * Unreasonable search and seizure in New Zealand US specific: * Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) * Civil forfeiture in the United States * DEA *
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and Federal law enforcement in the United States, its principal federal law enforcement ag ...
* Immigration and Customs Enforcement (ICE) * Minimally intrusive warrantless search *
No-knock warrant In the United States, a no-knock warrant is a warrant issued by a judge that allows law enforcement to enter a property without immediate prior notification of the residents, such as by knocking or ringing a doorbell. In most cases, law enforcemen ...
* Search and seizure law in Pennsylvania *
United States Border Patrol The United States Border Patrol (USBP) is a Federal law enforcement in the United States, federal law enforcement agency under the U.S. Customs and Border Protection, United States Customs and Border Protection (CBP) and is responsible for secu ...
*
United States Customs and Border Protection United States Customs and Border Protection (CBP) is the largest Federal law enforcement in the United States, federal law enforcement agency of the United States Department of Homeland Security. It is the country's primary border guard, border ...
(CBP) *
United States Marshals Service The United States Marshals Service (USMS) is a Federal law enforcement in the United States, federal law enforcement agency in the United States. The Marshals Service serves as the enforcement and security arm of the United States federal judi ...
*
United States Secret Service The United States Secret Service (USSS or Secret Service) is a federal law enforcement agency under the Department of Homeland Security tasked with conducting criminal investigations and providing protection to American political leaders, thei ...


References

{{DEFAULTSORT:Search And Seizure Evidence law Law enforcement agency powers Privacy law in the United States Searches and seizures