Search and Seizure

The words “search and seizure” are associated with the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable searches and seizures.” These words presuppose state action; that is, the Fourth Amendment is applicable only if a law enforcement agent or a private citizen acting at the behest of the police conducted the search or seizure.

The U.S. Supreme Court currently defines the Fourth Amendment term search as a police intrusion upon a legitimate or reasonable expectation of privacy. A mere subjective belief that an activity or object is private is insufficient to trigger Fourth Amendment protection. The expectation of privacy must be one that, in the view of the courts, society acknowledges. Thus, police rummaging through trash placed at curbside in closed opaque containers is not considered a search in the Fourth Amendment sense, because the Supreme Court has concluded that there is no reasonable expectation of privacy in discarded trash (California v. Greenwood, 1988). By contrast, the courts afford the interior of a home maximal protection from police intrusion, and in the absence of exigent circumstances, demand advance judicial approval for home entries.

The definition of seizure depends on whether it is a person or property being seized. Property is seized when there is meaningful interference with an indi-vidual's possessory interest in the item. This could include removing the object from an individual's possession, destroying it, or securing premises (such as a residence) by restricting access to it. Merely moving an object to examine it is ordinarily not a seizure.

A person is seized if he or she is rendered physically incapable of leaving the scene, or when, in view of all of the circumstances, a reasonable person would believe that he or she is not free to leave. Whereas an arrest is a seizure, not every seizure is an arrest. A person could be briefly detained (seized) by the police and be released rather than arrested. Furthermore, not all confrontations between private citizens and police are seizures. A mere nonforcible approach to a person, along with the asking of questions, is not a seizure. On the other hand, if the police make a show of authority, such as an order to stop or the display of a weapon, and if the individual submits to that authority, he or she will be considered seized.

Whether or not someone or something is searched or seized is significant in determining the applicability of the Fourth Amendment and the limitations it imposes on law enforcement agents. In the absence of a search or seizure, the police are not required to secure a warrant or to respect Fourth Amendment law governing warrantless searches and seizures. Evidence obtained by the police in such circumstances is not subject to the exclusionary rule, which is the remedy for Fourth Amendment violations.

By contrast, where the police conduct is deemed a search or seizure, the Fourth Amendment is triggered, and evidence secured in violation of its mandates (i.e., secured without a warrant or without observing the rules of warrantless searching and seizing) may be deemed inadmissible against the defendant whose person or property was searched or seized. In short, Fourth Amendment rules apply only to Fourth Amendment events, and intrusions by private citizens, or police intrusions that do not implicate legitimate privacy expectations, are nonevents insofar as the Fourth Amendment is concerned.

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