Search and seizure: Difference between revisions

Content deleted Content added

Inline

Latest revision as of 17:42, 11 December 2024

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.

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]

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.

References

^ "The Italian Constitution". The official website of the Presidency of the Italian Republic.
^ 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.
^ Evidence Act 2006, s30 (5).
^ "History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Arboreus – artery". digicoll.library.wisc.edu. Retrieved April 6, 2017.
^ "History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Attachiamenta – azymus". digicoll.library.wisc.edu. Retrieved April 6, 2017.
^ "U.S. Const. amend. IV". Official Bill of Rights in the National Archives. U.S. National Archives. Retrieved November 23, 2012.
^ Jacobson v. United States, 466 U.S. 109, 113 (1984)
^ "Mapp v. Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)". Google Scholar. Retrieved September 11, 2017.
^ Wilkins, Richard G. (1987). "Defining the reasonable expectation of privacy: an emerging tripartite analysis". Vanderbilt Law Review. 40: 1077.
^ 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.
^ "Coolidge v. New Hampshire, 403 U.S. 443 (1971)".
^ 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.
^ Whitebread, Charles H. (2000). Criminal Procedure: An Analysis of Cases and Concepts. / Edition 5. MN: Foundation Press/ West Academic. p. 1019.
^ Regina v Smith, 4 AER 289 (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").
^ Brinegar v. United States, 338 U.S. 160 (1949).
^ ^a ^b AO 93 (Rev. 12/09) Search and Seizure Warrant Archived April 7, 2010, at the Wayback Machine. Uscourts.gov.
^ 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.
^ 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.
^ Primus, Eve B. (March 2011). "Disentangling Administrative Searches". Columbia Law Review. 111 (2): 254–312. JSTOR 29777196.
^ Barry, Donald D., and Howard R. Whitcomb, The legal foundations of public administration (Lanham, Md: Rowman & Littlefield Publishers), 122.
^ Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924)
^ Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946)

[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, 4 AER 289 (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).

[uscourts.gov-16] 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)

[1]

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

@@ Line 1: / Line 1: @@
-{{Unreferenced|date=June 2007}}
+{{Use American English|date = March 2019}}
+{{Short description|Police powers}}
-{{CrimPro-I}}
+{{Use mdy dates|date = March 2019}}
-'''Search and seizure''' is a legal procedure used in many [[common law]] countries 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.[[Image:vehicle drug search australia.jpg|thumb|left|Police search the vehicle of a suspected drug smuggler in Wentworth, in the state of New South Wales, Australia, near the border with Victoria]]  Certain countries, such as the [[United States]] and [[Canada]], have provisions in their [[constitution]]s that provide the public with the right against "unreasonable" search and seizure. This right is generally based on the premise that everyone is entitled to a reasonable [[Privacy|right to privacy]].
+[[File:vehicle drug search australia.jpg|thumb|right|upright=1.2|[[Dareton, New South Wales|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 (legal system)|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 [[Confiscation|confiscate]] any relevant evidence found in connection to the crime.
+Some countries have certain provisions in their [[constitution]]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]].
-Though interpretation may vary, this right usually requires law enforcement to obtain a [[search warrant]] before engaging in any form of search and seizure.
+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]].
-== United States ==
-The [[Fourth Amendment to the United States Constitution]] ensures citizens' right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …"  The amendment goes on to set forth the conditions under which a warrant may be issued:  "no warrant 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 U.S. Constitution is that a valid warrant is required for a valid search.  There are, however, several exceptions to this rule.
-For instance, the owner of the property in question may [[Consent searches|consent to the search]].  The consent must be voluntary, but there is no clear test to determine voluntariness; 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.
+==Italy==
-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.
+In [[Italy]] protection from search and seizure is enshrined in Article 14 of the [[Italian Constitution|Constitution]], which states:<ref>{{cite web|title=The Italian Constitution|url=http://www.quirinale.it/page/costituzione|publisher=The official website of the Presidency of the Italian Republic}}</ref>
-[[Image:DEA Operation Reciprocity - money seizure.gif|thumb|[[Drug Enforcement Administration|DEA]] investigators found $5.6 million hidden in a ceiling compartment of a truck during a seizure (Operations Reciprocity, 1997)]]
+"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."
-There is also a lowered expectation of privacy inside of a 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", although the Supreme Court's analysis is somewhat more nuanced.{{Fact|date=December 2007}}  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).
+==New Zealand==
-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.
+{{main|Unreasonable search and seizure in New Zealand}}
+Section 21 of the [[New Zealand Bill of Rights Act 1990]] (NZBoRA 1990) incorporates this right into [[Law of New Zealand|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."
-Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches are called refined searches.
+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,<ref>{{cite book |title=Review of the Search and Surveillance Act 2012: Issues Paper |date=November 2016 |publisher=New Zealand Law Commission |location=Wellington |isbn=978-1-877569-77-7 |page=29-39 |url=https://www.lawcom.govt.nz/assets/Publications/IssuesPapers/NZLC-IP40.pdf |access-date=4 October 2024}}</ref> 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.<ref>Evidence Act 2006, s30 (5).</ref> 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.
-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.
+== United Kingdom ==
-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.
+Historically, [[English law|English common law]] made use of a number of different types of legal [[writ]]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.<ref>{{Cite web|url=http://digicoll.library.wisc.edu/cgi-bin/HistSciTech/HistSciTech-idx?type=turn&entity=HistSciTech.Cyclopaedia01.p0187&id=HistSciTech.Cyclopaedia01&isize=M|title=History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Arboreus – artery|website=digicoll.library.wisc.edu|language=en-US|access-date=2017-04-06}}</ref> A writ of ''[[attachiamenta bonorum]]'' allowed for the seizure of [[personal property]] to recover a debt.<ref>{{Cite web|url=http://digicoll.library.wisc.edu/cgi-bin/HistSciTech/HistSciTech-idx?type=turn&id=HistSciTech.Cyclopaedia01&entity=HistSciTech.Cyclopaedia01.p0210&q1=Attachiamenta|title=History of Science: Cyclopædia, or, An universal dictionary of arts and sciences – Attachiamenta – azymus|website=digicoll.library.wisc.edu|language=en-US|access-date=2017-04-06}}</ref>
+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:
-Further, under the "fruit of the poisonous tree" doctrine, additional evidence discovered as a result of legally obtained evidence is also inadmissible.
+*{{section link|Powers of the police in England and Wales#Search without arrest}} in [[England and Wales]]
+*{{section link|Powers of the police in Scotland#Search without a warrant}} in [[Scotland]]
+==United States==
-Forfeiture laws are covered under [http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_46.html Title 18, part I, chapter 46] of the [[United States Code]].
+{{main|Fourth Amendment to the United States Constitution}}
+The Fourth Amendment of the [[United States Constitution]] states that:
-==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.
+{{quote|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.<ref>{{cite web |url=https://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html |title=U.S. Const. amend. IV |work=Official Bill of Rights in the National Archives|publisher=[[National Archives and Records Administration|U.S. National Archives]]|access-date=23 November 2012}}</ref>}}
-[[Category:Evidence]]
+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:
-[[de:Beschlagnahme]]
-[[fr:Mandat d'arrêt]]
+{{quote|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.<ref>''Jacobson v. United States'', {{ussc|466|109|1984|pin=113}}</ref>}}
-[[nl:Huiszoeking]]
-[[ja:押収]]
+===Warrant requirement===
-[[simple:Search and seizure]]
+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".
-[[fi:Kotietsintä]]
-[[sv:Husrannsakan]]
+For instance, the owner of the property in question may [[Consent searches|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]]''.<ref>{{cite web|title=''Mapp v. Ohio'', 367 US 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) |url=https://scholar.google.com/scholar_case?case=589965672959279882 |publisher=Google Scholar |access-date=11 September 2017}}</ref>
+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.<ref>{{cite journal |last1=Wilkins |first1=Richard G. |title=Defining the reasonable expectation of privacy: an emerging tripartite analysis |journal=Vanderbilt Law Review |date=1987 |volume=40 |page=1077 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/vanlr40&div=48&id=&page=}}</ref>
+[[File:DEA_Operation_Reciprocity_-_money_seizure.png|thumb|[[Drug Enforcement Administration|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.<ref>{{cite journal |last1=Sklansky |first1=David A. |title=Traffic stops, minority motorists, and the future of the Fourth Amendment |journal=The Supreme Court Review|date=1 January 1997 |volume=1997 |page=271 |doi=10.1086/scr.1997.3109744 |s2cid=142595666 |url=https://lawcat.berkeley.edu:443/record/1116089/files/fulltext.pdf |access-date=11 September 2017}}</ref> However, ''[[Coolidge v. New Hampshire]]'' dictates that "the word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."<ref>{{Cite web | url=https://supreme.justia.com/cases/federal/us/403/443/case.html | title=''Coolidge v. New Hampshire'', 403 U.S. 443 (1971)}}</ref>
+===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.<ref>{{cite journal|last1=Heder|first1=Bill O.|title=The Development of Search and Seizure Law in Public Schools|journal=Brigham Young University Education and Law Journal|volume=1999|date=1999|page=71|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/byuelj1999&div=16&id=&page=|access-date=11 September 2017}}</ref>
+While the interpretations of the [[Supreme Court of the United States|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.<ref>{{cite book |last=Whitebread |first=Charles H.|date=2000|title=Criminal Procedure: An Analysis of Cases and Concepts. / Edition 5|url= http://www.barnesandnoble.com/enwiki/w/criminal-procedure-charles-h-whitebread/1101184310 |location= MN |publisher= Foundation Press/ West Academic|page=1019}}</ref> Those qualifying doctrines are reasonableness,<ref>{{cite court|litigants=Regina v Smith |vol=4 |reporter=AER |opinion=289 |pinpoint= |court= |year=2000 |url=https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd000727/smith-1.htm |quote=[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 }}</ref> probable cause,<ref>''[[Brinegar v. United States]]'', {{ussc|338|160|1949}}.</ref> judicial authority,<ref name="uscourts.gov">[http://www.uscourts.gov/forms/AO093.pdf AO 93 (Rev. 12/09) Search and Seizure Warrant] {{Webarchive|url=https://web.archive.org/web/20100407223833/http://www.uscourts.gov/forms/AO093.pdf |date=April 7, 2010 }}. Uscourts.gov.</ref> and particularity.<ref>{{cite book |last=Gryzlo |first=Joseph P.|title=A Balancing Act: Fourth Amendment Protections and the Reasonable Scope of Government Investigatory Access to E-Mail Accounts |year=2016|publisher=John's L|page=495}}</ref> 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.<ref name="uscourts.gov"/>
+====Exclusionary rule====
+The primary remedy in illegal search cases is known as the "[[exclusionary rule]]".<ref>{{cite journal|last1=Loewenthal|first1=Milton A.|title=Evaluating the Exclusionary Rule in Search and Seizure|journal=Anglo-American Law Review|date=1 October 1980|volume=9|issue=4|page=238|doi=10.1177/147377958000900403|s2cid=157351521}}</ref> 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 of the United States|Supreme Court]] interpretation in favor of stronger government in regards to investigatory power.<ref>{{cite journal|last1=Primus|first1=Eve B.|title=Disentangling Administrative Searches|journal=Columbia Law Review|date=March 2011|volume=111|issue=2|pages=254–312|jstor=29777196}}</ref><ref>Barry, Donald D., and Howard R. Whitcomb, ''The legal foundations of public administration'' (Lanham, Md: Rowman & Littlefield Publishers), 122.</ref> In ''Federal Trade Commission v. American Tobacco Co.'',<ref>''Federal Trade Commission v. American Tobacco Co.'', {{ussc|264|298|1924}}</ref> the [[Supreme Court of the United States|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. [[Oliver Wendell Holmes Jr.|Justice Holmes]] ruled that this would go against "the spirit and the letter" of the Fourth Amendment.
+{{anchor|Figurative or constructive searches}} In the 1946 case of ''Oklahoma Press Pub. Co. v. Walling'',<ref>''Oklahoma Press Pub. Co. v. Walling'', {{ussc|327|186|1946}}</ref> 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 to the United States Constitution|Fourth Amendment]], where actual search and seizure requires a [[search warrant|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 to the United States Constitution|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 ==
+{{div col|colwidth=30em}}
+* [[Frisking]]
+* [[INTERPOL]]
+* [[KGB]]
+* [[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]]
+* [[Drug Enforcement Administration|DEA]]
+* [[FBI]]
+* [[Immigration and Customs Enforcement]] (ICE)
+* [[Minimally intrusive warrantless search]]
+* [[No-knock warrant]]
+* [[Search and seizure law in Pennsylvania]]
+* [[United States Border Patrol]]
+* [[United States Customs and Border Protection]] (CBP)
+* [[United States Marshals Service]]
+* [[United States Secret Service]]
+{{div col end}}
+==References==
+{{Reflist}}
+{{Criminal procedure}}
+{{Authority control}}
+{{DEFAULTSORT:Search And Seizure}}
+[[Category:Evidence law]]
+[[Category:Law enforcement agency powers]]
+[[Category:Privacy law in the United States]]
+[[Category:Searches and seizures]]

v t e Criminal procedure (investigation)
Criminal investigation	Arguido Arrest Arrest warrant Consent search Detention Exigent circumstance Knock-and-announce Miranda warning Pretextual stop Probable cause Reasonable suspicion Right to silence Search and seizure Search of persons Search warrant Suspect Terry stop	Law portal
Criminal prosecution	Adversarial system Bail Bill of attainder Criminal jurisdiction Deferred prosecution agreement Ex post facto law Extradition Grand jury Habeas corpus Indictment Inquisitorial system Nolle prosequi Precognition Preliminary hearing Statute of limitations
Charges and pleas	Alford plea Arraignment Indictment Information Nolo contendere Peremptory plea Plea Plea bargain Presentence investigation
Related areas	Criminal defenses Criminal law Evidence Evidence law in the United States Legal abuse
Wiktionary Wikibooks Wikiquote WikiSource Wikimedia Commons Wikinews Wikiversity