HOME

TheInfoList



OR:

Search and seizure is a procedure used in many
civil law Civil law may refer to: * Civil law (common law), the part of law that concerns private citizens and legal persons * Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law ** Private la ...
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 omniprese ...
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 a ...
or other authorities and their agents, who, suspecting that a
crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
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, organisation or other type of entity and commonly determine how that entity is to be governed. When these princip ...
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 Privacy (, ) is the ability of an individual or group to seclude themselves or information a ...
. 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 ...
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 ( 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 ...
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 entity and commonly determine how that entity is to be governed. When these princip ...
, 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 (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.


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 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. A writ of '' attachiamenta bonorum'' allowed for the seizure of personal property 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, 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 ...
* 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 th ...


United States

The Fourth Amendment of the United States Constitution 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 United may refer to: Places * United, Pennsylvania, an unincorporated community * United, West Virginia, an unincorporated community Arts and entertainment Films * ''United'' (2003 film), a Norwegian film * ''United'' (2011 film), a BBC Two fi ...
'', which said that the Fourth Amendment:


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''. 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. There is also a lowered expectation of privacy inside of motor vehicles. However, '' Coolidge v. New Hampshire'' 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 witho ...
" 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 ...
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 ...
, 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 the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
, 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" 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 ...
”. In the case of a constructive search where the records and papers sought are of corporate character, the court held that the Fourth Amendment does not apply, since corporations are not entitled to all the constitutional protections created in order to protect the rights of private individuals.


See also

*
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 enforc ...
*
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 cr ...
* 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 * DEA * FBI * Immigration and Customs Enforcement (ICE) * Minimally intrusive warrantless search * No-knock warrant *
Search and seizure law in Pennsylvania The law of search and seizure in Pennsylvania is controlled by both the United States Constitution and the broader protections of the Pennsylvania Constitution. This article is concerned only with the protections provided by the Pennsylvania Const ...
*
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 (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 USMS is a Government agency, bureau within the United States Department of Justice, U.S. Depa ...
*
United States Secret Service The United States Secret Service (USSS or Secret Service) is a Federal law enforcement in the United States, federal law enforcement agency under the United States Department of Homeland Security, Department of Homeland Security charged with co ...


References

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