Search and Seizure

4th Amendment Definition

The 4th Amendment to the United States Constitution provides that: "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."

Seizure

Anytime law enforcement restrains a person of their freedom by telling them to stop or not to move a "seizure" has occurred. This includes a traffic stop. The officer must have reason to believe the individual is involved or is about to become involved in criminal activity or has committed a traffic violation prior to restraining the person of their freedom. When an individual in public is approached by law enforcement they have the right to walk away and go on about their business. If law enforcement orders them to stop and talk to them, "reasonable suspicion" of criminal activity must be present or the stop is illegal.

Search

The general rule is that in order to search a person's house, property, vehicle or person, law enforcement must have first obtained a search warrant supported by probable cause and signed by a neutral judge. There are exceptions to the search warrant requirement, the most common of which is consent. An individual can consent to the search and a warrant is not required. However, an individual also has the absolute constitutional right to refuse consent to search and can require law enforcement to first obtain a search warrant if they have enough evidence. Refusal of consent may not be used against the person to get a search warrant or in a future criminal prosecution, if any.

Arrest

An arrest of an individual must be supported by probable cause to believe that they committed a criminal offense. Probable cause must be based upon a reasonable interpretation of the objective facts available to the officer at the time action was required. The question is: do the facts known to the officer at the time of the arrest, warrant a reasonable person in believing that the individual committed the criminal offense?

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