Search and Seizure – An Overview

Search and Seizure – An Overview

Search and Seizure – An Overview

The Fourth Amendment to the United States Constitution has been the subject of thousands of legal opinions. The Fourth Amendment guarantees that all people in the United States shall be free from unreasonable government searches. The Fourth Amendment provides: 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.

Search Warrant

A search warrant is a legal document issued by a judge giving a law enforcement officer the authority to search a person’s dwelling, person, or personal belongings. To obtain a search warrant, a law enforcement officer must submit an application to a judge setting out probable cause to believe that evidence of a crime is located at a particular location. If the officer’s application fails to set out probable cause in sufficient detail, the judge will refuse to issue the search warrant. The applicant must swear to the truth of the application. If a warrant is issued, it is limited in scope. In other words, the officer may only look for the items specified in the warrant and may only look in areas specified by the warrant. When the warrant is executed, the officer may only search in areas where he might reasonable expect to find the items specified in the warrant. An officer may not look for a stolen automobile in a desk drawer.

The Fourth Amendment does not forbid all searches — only unreasonable searches conducted by the government. The Fourth Amendment does not apply to searches conducted by private persons nor does it apply to situations where no search is involved. No search is involved when items are in plain view or when items are in the middle of an open field.

Exceptions to the Warrant Requirement

The Supreme Court has determined that all searches conducted without a valid search warrant are presumed to be unreasonable. The Court has ruled, however, that there are exceptions to the warrant requirement. Those exceptions include searches conducted at the time of a valid arrest, searches of automobiles, border searches, administrative searches of government regulated businesses, searches of the office of a government employee, and prison “shakedowns” or searches of persons in police custody. The court has held that no search warrant is required when a law enforcement officer is faced with exigent circumstances. “Exigent circumstances” has been equated with an emergency situation where the failure of law enforcement to act would pose a bigger threat than that caused by the warrantless search of a person’s house or person. A search warrant is not required for a boat boarding by the Coast Guard and is not required by bomb or arson investigators to search the scene of a fire. The Court has recently determined that no warrant is required for searches conducted at courthouse doors, at airports, or in schools.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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