Search and Seizure

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. Certain countries, such as the United States and Canada, have provisions in their constitutions that provide the public with the right against "unreasonable" search and seizure. This right is generally based in the promise 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.


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 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.

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 a motor vehicles. This "automobile exception" has been summarized by law scholar Professor 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. 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).

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.

Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches are called Searches incident to a lawful arrest.

While the interpretations of the U.S. Supreme Court are binding on all state and 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.

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.

Further, under the "fruit of the poisonous tree" doctrine, additional evidence discovered as a result of illegally obtained evidence is also excluded.

Forfeiture laws are covered under Title 18, part I, chapter 46 of the United States Code.


FAQ

Q: If the police ask to search my car, what should I do?

A: You are never required to consent to a search of your vehicle. Of course, a police officer is not obligated to advise you that you have the right to refuse consent to search. The only rights the police must advise you of are your Miranda rights, which will be discussed below. You must be aware of your Fourth Amendment rights and take the appropriate measures to invoke them when confronted by law enforcement.

If you do not wish to consent to a search of your vehicle, you should make two things clear to the officer. First, that you do not consent to a search of your vehicle, and second that you will not physically obstruct him if he believes that he has probable cause. This is so because even if you refuse consent to search the officer might search anyway. If the officer searches your car without your consent he will have to justify to a judge why he thought he had probable cause to search in the event contraband is discovered. If you are charged with a crime based upon items seized from the car, your lawyer may be able to challenge the admissibility of this evidence with a suppression motion. Had you consented to the search then this potentially valuable defensive strategy would not be available to you.

Q: When the officer arrested me he forgot to read me my rights. Does this mean I can get the charges thrown out automatically?

A: No. The Miranda warnings are only required to be given if the police question you while in custody. Statements made to law enforcement during a custodial interrogation are not admissible unless the suspect was first read his Miranda rights.

The police are not required to Mirandize you unless you are in custody. For example, if a police officer calls you on the telephone and you make incriminating statements you cannot have those statements excluded from evidence for failure to give Miranda warnings because you were not in custody at the time you made the statement. Custody in this sense does not necessarily mean a formal arrest. It simply means a situation in which your freedom of movement is being restricted by the police. This is why you should always ask a police officer if you are free to leave. If he says yes, then leave. If he says no, then the next words out of your mouth should be "I want a lawyer." After you invoke your right to counsel the police may not legally question you further.

Even if a statement was taken from you in violation of Miranda this does not mean that the charges will be thrown out. It simply means that your statement will not be admissible. The prosecution may have other evidence which may be sufficient to prove you guilty.

Q: Can I demand to know whether or not I am under arrest?

A: Yes. However, there are other circumstances under which a police officer may legally detain you without arresting you. It is better to ask whether or not you are free to leave. If the officer says yes, then leave. If he says no, then the next words out of your mouth should be "I want a lawyer." After you invoke your right to counsel the police may not legally question you further.

Once you are arrested you may demand to know what charges you are being detained for.

Q: Do the police need a search warrant to search a vehicle?

A: Rarely. The law in this area is rather complicated, but generally most automobile searches are upheld without a warrant. If no consent is given to search the vehicle, the police will have to establish at a minimum that they had probable cause to search.

Q: Do the police need a search warrant to search a private residence?

A. Almost always, yes. Fourth Amendment law is very complicated and peppered with exceptions and exceptions to exceptions, but as a general rule the police usually need a warrant to search a private residence unless consent is given. The home is one of the few places which enjoys meaningful protection by the Fourth Amendment.

Q: What should I do if the police threaten to arrest me if I don’t comply with their request for permission to search?

A: A police officer who makes such a threat is violating the law and should not be trusted. In all likelihood he will arrest you anyway. Do not give your consent to search. If he arrests you, make him justify his actions in court.

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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.