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What is a Search and Seizure?

Updated on March 2, 2010

Search and seizure is the examination or inspection by an officer of the law of a suspect's premises or person, in order to discover stolen, contraband, or illicit property, or some evidence of guilt, to be used in the prosecution of a criminal action. In the United States, protection against the abuse of this practice is provided in the 4th Amendment to the Constitution, which forbids "unreasonable search and seizure", and is also provided in similar state constitutional provisions. The 4th Amendment, together with its state constitutional counterparts, condemns arrests or searches on mere suspicion, as, for example, simply on the basis of an anonymous phone call.

The amendment provides that the police may invade a man's privacy or curtail his liberty only upon "probable cause" or "reasonable grounds". This standard has been defined by the courts to mean those apparent facts or circumstances that would cause a reasonably discreet and prudent man to believe that a criminal offense has been, or is being committed, as charged.

So far as the police are armed with "probable cause", the arrest or search is valid, even though the person involved turns out to be innocent. But if the police act arbitrarily or indiscriminately, their conduct is illegal, even though it turns out that they happened to guess correctly on a particular occasion. As the courts have expressed it, a search or seizure is "good or bad when it starts and does not change character from its success". Were it otherwise, officers would "be encouraged to proceed in an irregular manner on the chance that all will end well".

Searches Contrasted with Arrests. In one important respect, the rules governing searches are more restrictive than those governing arrests: searches require a warrant, a written authorization by a magistrate to the police to arrest or search. Arrests without a warrant, even though there is ample opportunity to secure one, are valid if based on "probable cause". The person may then be searched, as may the area "within his immediate control", in order to protect the arresting officer against attack by hidden weapons or to prevent the destruction of incriminating evidence in the arrested person's possession. However, unless the search itself is incident to an initial lawful arrest and confined to the area within the arrested person's reach, a search of a home, however "reasonable" or "probable" the belief that contraband or articles offensive to the law will be found inside, is generally still invalid when not made pursuant to a warrant. Thus, without some compelling necessity such as the need to move swiftly to prevent the imminent destruction of incriminating evidence in the house, or the need to stop and search a moving vehicle, the police may not bypass the magistrates. Even when emergency conditions justify dispensing with the need for a search warrant, they do not permit dispensing with the need for "probable cause".

"Stop and Frisk". In 1968 the U. S. Supreme Court held that, under certain circumstances, a police officer who lacks adequate grounds to make a full search or technical arrest may nevertheless briefly detain and "frisk" a person on the street or other public place. The Court utilized a "balancing of interests" test, ruling that the "reasonableness" of each particular invasion of a citizen's privacy should be determined by balancing law enforcement interests against the magnitude of the intrusion involved. Thus, it concluded that when an officer has reason to believe that "criminal activity may be afoot and the person with whom he is dealing may be armed and presently dangerous", even though the officer lacks traditional "probable cause", he may constitutionally conduct a carefully limited search of the outer clothing of such person in order to discover weapons which might be used to assault him.

Supreme Court Interpretation. All state constitutions contain a clause similar to that of the 4th Amendment, often using its precise wording. Even if such a state guaranty were to be repealed, every person would still be protected against illegal arrests or searches by state or city police, for though the 4th Amendment is addressed to federal agents only, the U. S. Supreme Court has held that the security of one's privacy against arbitrary intrusion by the police is "implicit in the concept of ordered liberty" and thus enforceable against the states under the due process clause. The court has also ruled that the federal constitution bars the use of illegally seized evidence, and likewise of leads or clues obtained from such evidence, in state as well as federal criminal prosecutions. This is known as the "exclusionary rule". But in 1971, newly appointed Chief Justice Warren Burger expressed much disenchantment with the rule. He doubted that it significantly deterred police from acting illegally and maintained that, whatever the rule's benefits, it was not worth "the high price it extracts from society- the release of countless guilty criminals". His unhappiness with the rule, and criticism of it by judges and law enforcement officials, indicated that the rule was in considerable jeopardy.


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