![vehicle drug search australia](https://upload.wikimedia.org/wikipedia/commons/f/fb/Vehicle_drug_search_australia.jpg)
Search and seizure is a procedure used in many
civil law and
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal systems by which
police
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
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, definit ...
has been committed, commence a search of a person's property and
confiscate
Confiscation (from the Latin ''confiscatio'' "to consign to the ''fiscus'', i.e. transfer to the treasury") is a legal form of seizure by a government or other public authority. The word is also used, popularly, of spoliation under legal forms, o ...
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, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
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 150 national constitutions mention the right to privacy. On 10 December 1948 ...
.
Though specific interpretation may vary, this right can often require
law enforcement
Law enforcement is the activity of some members of government who act in an organized manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. The term en ...
to obtain a
search warrant
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, ...
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
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 e ...
the evidence under the
exclusionary rule
In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be consider ...
.
Italy
In
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical re ...
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, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, 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
The right to be free from unreasonable search and seizure is well recognised by the international human rights community. Section 21 of the
New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA or simply BORA) is a statute of the Parliament of New Zealand part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of an ...
(NZBoRA 1990) incorporates this right 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 statutes enacted by the New Zealand Parliament and case law made by decisions ...
, 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
New Zealand's Search and Surveillance Act 2012 received Royal Assent on 5 April 2012, after being introduced in 2009. The three-year gap between the introduction of the Bill into Parliament and assent indicates the extent of the debates that occ ...
provides the statutory framework for the practical application of the law in this area in New Zealand.
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.
Principal elements of English law
Although the common law has, historically, bee ...
made use of a number of different types of legal
writ
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
s to effect seizures for various reasons. For example, a writ of ''
arrestandis bonis ne dissipentur
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') 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 wri ...
'' 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 or other agreed-upon value to another party, the credit ...
'' allowed for the seizure of
personal property
property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved fr ...
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 questi ...
, 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 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. The substantive law of the jurisdiction is Eng ...
* in
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
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, in 1789. Originally comprising seven ar ...
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:
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, in 1789. Originally comprising seven ar ...
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 the law, the totality of the circumstances test refers to a method of analysis where decisions are based on all available information rather than bright-line rules. Under the totality of the circumstances test, courts focus "on all the circumsta ...
" 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
''Mapp v. Ohio'', 367 U.S. 643 (1961), was a landmark decision of the Supreme Court of the United States, U.S. Supreme Court in which the Court ruled that the exclusionary rule, which prevents prosecutors from using Evidence (law), evidence in co ...
''.
When an individual does not possess a "
reasonable expectation of privacy
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 United States Constitution. It is related to, but is not the same as, a ''right to 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.
![DEA_Operation_Reciprocity_-_money_seizure](https://upload.wikimedia.org/wikipedia/commons/6/66/DEA_Operation_Reciprocity_-_money_seizure.png)
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 In criminal procedure law of the United States, an exigent circumstance allows law enforcement (under certain circumstances) to enter a structure without a search warrant, or if they have a " knock and announce" warrant, allows them to enter withou ...
" 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 standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
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 standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
, 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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
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](_blank)
. 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
In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be consider ...
". 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 the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
, there has been an evolution of
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. 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
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. 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
A fishing expedition is an informal, pejorative term for a non-specific search for information, especially incriminating information. It is most frequently organized by policing authorities.
Media
In the UK, Abu Hamza and Yaser al-Sirri, Jim Dav ...
" 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 standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
”. In the case of a
constructive search
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 ...
where the records and papers sought are of corporate character, the court held that the
Fourth Amendment does not apply, since
corporations
A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and r ...
are not entitled to all the constitutional protections created in order to protect the rights of private individuals.
See also
*
Frisking
Frisking (also called a patdown or pat down) is a search of a person's outer clothing wherein a person runs their hands along the outer garments of another to detect any concealed weapons or objects.
U.S. Law
In the United States, a law enforce ...
*
INTERPOL
The International Criminal Police Organization (ICPO; french: link=no, Organisation internationale de police criminelle), commonly known as Interpol ( , ), is an international organization that facilitates worldwide police cooperation and cri ...
*
KGB
The KGB (russian: links=no, lit=Committee for State Security, Комитет государственной безопасности (КГБ), a=ru-KGB.ogg, p=kəmʲɪˈtʲet ɡəsʊˈdarstvʲɪn(ː)əj bʲɪzɐˈpasnəsʲtʲɪ, Komitet gosud ...
*
Proactive policing
Proactive policing is the practice of deterring criminal activity by showing police presence. It includes activities such as the use of police powers by both uniformed and plain-clothes officers, engaging the public to learn their concerns, and ...
*
Search of persons
Police officers in various jurisdictions have power to search members of the public, for example, for weapons, drugs and stolen property. This article concerns searches of members of the public who have not been arrested and who are not held in de ...
(UK)
*
Search warrant
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, ...
*
Strip search
A strip search is a practice of searching a person for weapons or other contraband suspected of being hidden on their body or inside their clothing, and not found by performing a frisk search, but by requiring the person to remove some or al ...
*
Unreasonable search and seizure in New Zealand
The right to be free from unreasonable search and seizure is well-recognised by the international human rights community. Section 21 of the New Zealand Bill of Rights Act 1990 (NZBoRA 1990) incorporates this right into New Zealand law, stating tha ...
US specific:
*
Bureau of Alcohol, Tobacco, Firearms, and Explosives
The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), commonly referred to as the ATF, is a domestic law enforcement agency within the United States Department of Justice. Its responsibilities include the investigation and preven ...
(ATF)
*
Civil forfeiture in the United States
Civil may refer to:
* Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
* Civil disobedience
*Civil engineering
* Civil (journalism), a platform for independent journalism
*Civilian, someone not a m ...
*
DEA
The Drug Enforcement Administration (DEA; ) is a United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within the U.S. It is the lead agency for domestic enf ...
*
FBI
The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
*
Immigration and Customs Enforcement
The U.S. Immigration and Customs Enforcement (ICE) is a federal law enforcement agency under the U.S. Department of Homeland Security. ICE's stated mission is to protect the United States from the cross-border crime and illegal immigration tha ...
(ICE)
*
Minimally intrusive warrantless search In United States Constitutional Law, a minimally intrusive/invasive warrantless search is a type of search and seizure, search that does not breach the boundaries of the property and is performed without any prerequisite search warrant. These 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 United States' U.S. Customs and Border Protection, Customs and Border Protection and is responsible for securing ...
*
United States Customs and Border Protection
United States Customs and Border Protection (CBP) is the largest federal law enforcement agency of the United States Department of Homeland Security. It is the country's primary border control organization, charged with regulating and facilit ...
(CBP)
*
United States Marshals Service
The United States Marshals Service (USMS) is a federal law enforcement agency in the United States. The USMS is a bureau within the U.S. Department of Justice, operating under the direction of the Attorney General, but serves as the enforceme ...
*
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 charged with conducting criminal investigations and protecting U.S. political leaders, their families, and ...
References
{{DEFAULTSORT:Search And Seizure
Evidence law
Law enforcement agency powers
Privacy law in the United States
Searches and seizures