SEARCH AND SEIZURE

SEARCH & SEIZURE

What is search and seizure?

The Fourth Amendment states, “The right of the people to be secure in their persons, house, 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.”

The purpose of the Fourth Amendment is to protect the government from violating an individual’s right to privacy. Generally, reasonable searches are based on if there is probable cause. Probable cause is evidence or facts that would make a reasonable person would believe that a crime has been, is being, or will be committed.

Legitimate Expectation of Privacy is Prerequisite to Fourth Amendment Claim

When contesting whether a search was reasonable, the defendant must show that he or she had a legitimate expectation of privacy in the area searched. A subjectively held expectation of privacy is not enough to show there was a violation of a person’s right to privacy. The expectation must be based on what society is prepared to consider as a reasonable expectation of privacy. The reason behind this is that in order to uphold fairness, a person’s specific perspective is not used when determining expectation of privacy. Instead, what society as a whole perceives as expectation of privacy is believed to maintain fairness.

One way of challenging a search warrant is to argue that the facts in the affidavit that support the warrant are not enough to show probable cause. It must be remembered that an insufficient affidavit does not require suppression if the police acted with the good faith belief that the warrant was valid. US v. Leon, 468 US 897 (1984).

Fourth Amendment Challenge (Reasonable Expectation of Privacy)

An attack on a codefendant’s confession because of an unlawful search and seizure is usually difficult because a defendant must have a reasonable expectation of privacy in the place searched or the items seized in order to contest the legality of a search or seizure.

What interests are protected under the Fourth Amendment?

The Fourth Amendment analysis requires two questions that need to be addressed. 1) Whether the individual’s conduct or action has shown an actual expectation of privacy. In other words, whether he has shown that he sought to preserve something as private. 2) Whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable. Bond v. U.S., 529 U.S. 334, 338 (2000).

Under the Fourth Amendment, property used for commercial purpose is treated differently because an expectation of privacy in commercial premises is different from the expectation of an individual’s home. Minnesota v. Carter, 525 U.S. 83, 90 (1998). This is because a person’s home is considered as private and personalized since most people take comfort in their homes. People eat, sleep and do other activities in a manner that they may not display in public.

General Information on a search:

In order for law enforcement to search an individual and/or the property owned by this individual, a valid search warrant is generally needed. A search warrant is an order in writing that gives authorization to search for a person, thing, and/or personal property. The search warrant must be signed by law enforcement such as a judge or a law officer. In the case of a search of a thing or personal property, if it is found, it may be brought before the judge or the person issuing the search warrant. Refer to Penal Code §1523.

What is a search warrant?:

Search warrants are judicial orders authorizing law officers to search specific places and things and to seize specified evidence. Searches and seizures may also be conducted in certain circumstances without a warrant. Search and seizures that violate the Fourth Amendment often are followed by a motion to suppress under Penal Code Section 1538.5.

What is the purpose of a search warrant?:

“If the primary purpose of the search is to tiburon payday loan gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.” Michigan v. Clifford, 464 US 287 (1984).  If law enforcement has a reason to believe that an individual is committing or going to commit a crime, this is probably reason for law enforcement to search. A valid search warrant will allow law enforcement to search whatever is described in the warrant.

Does a search warrant ever become accessible to the public?:

Search warrants are kept on file by whoever authorized the warrant. Judges or authorized law enforcement often approve of search warrants. Clerical personnel generally file them consecutively by number according to when the warrant was issued, or by the street address.

Search warrants are not public records when issued but generally become so when returned or 10 days after a warrant has been issued, whichever comes first.

Affidavits in support of search warrants generally follow the same rules as the warrants themselves. However when it is necessary to protect an informant’s identity, the court can order portions of a search warrant affidavit, and occasionally even the warrant itself, sealed and therefore not available to the public.

What is an affidavit?

An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under and oath or affirmation administered by a person authorized to do so by law. This statement shows the authenticity of the affiant’s signature by a taker of oaths, such as a notary public or commissioner of oaths. The affiant’s signature verifies that the affiant understands that the statement that he or she signed is under oath or penalty of perjury.

Property seized:

If property is taken, police are required to leave a receipt for any property taken. Failure to display or provide a copy of the warrant at the time of execution does not, however, require suppression.

Illegal search (Return of property)

California search and seizure procedure, Penal Code § 1538.5, authorizes a defendant to suppress any evidence, tangible or intangible, that is based on an illegal search and seizure, or for return of property that has been illegally seized. The grounds supporting this action must be that the search, whether conducted with or without the benefit of a warrant, was unreasonable.

Information needed in a search warrant:

A search warrant should have a description of the place to be searched and items to be detained. These requirements are designed to prevent law enforcement to search in areas that are not described in the search warrant. A person has a right to their privacy and this would be violated if law enforcement searched beyond what is in the search warrant.

Search and Seizure of Minors:

Special search and seizure rules apply to minors. Officers may arrest a minor without warrant for a misdemeanor offense not committed in officer’s presence. Detentions of minor students on school grounds do not offend the Constitution, as long as they are not random, impulsive, or for the purposes of harassment.

When minor leaves school campus and returns the same day, limited search of minor is permitted if the school’s policy allows the search. Parents may consent to search of minor’s room in parent’s house, even over minor’s objection.

For juveniles, as for adults, a probation search is justified only if the law enforcement officer was aware of the search condition at the time of the search.

Mere disruptive behavior does not authorize rummaging through a student’s belongings. Police officer assigned to school counts as school official for Fourth Amendment Purposes.

(This is for informative purposes only and should not be relied upon as valid law. The law constantly changes and if you have questions about search and siezure you should contact Seneca Law Group today to speak with an experienced attorney (619) 630-8529)

This Blog was written by Julie Houth – Legal intern for Seneca Law Group

Leave a Reply

Your email address will not be published. Required fields are marked *