Search and Seizure in civil and common law systems

‘Search and Seizure’ are couple of legal terms (usually used together) in civil and common law systems, where law-enforcement authorities or their representatives, search a person’s property and confiscate valuable evidence to a purported crime.  The persons upon whom search and seizure are committed are selected on grounds of reasonable suspicion.  In most cases, the search operation does not lead to seizure of goods/property belonging to the suspected person.  At the time of the writing of the Constitution, the Founding Fathers reasoned that “search and seizure is a necessary exercise in the ongoing pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. The police have the power to search and seize, but individuals are protected against Arbitrary, unreasonable police intrusions.” (http://legal-dictionary.thefreedictionary.com, 2011)

The provisions under the search and seizure law are not uniform across countries.  For example, some countries allow citizens the right to be free from what they deem to be “unreasonable search and seizure”.  Often this right is derived from broader rights to individual privacy.  In most cases of ‘search and seizure’, the police officers are required to possess a valid search warrant before they commence their operations.  In the United States law, the Fourth Amendment to the Constitution states

“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 Warrants shall not be issued, 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.” (http://legal-dictionary.thefreedictionary.com, 2011)

This amendment is rather brief, leaving jurors to bank upon precedence and previous rulings on similar cases to ascertain legality of a contested ‘Search and Seizure’ operation.  Not only is the amendment brief, but it is also subjective and vague at places, leaving juries to read situations based on the spirit of the law as opposed to its actual stipulation.  Moreover, although consent must be voluntary and essential before the procedure begins, there are no clear-cut tests through which it is obtained.  As a result, the court will consider the ‘totality of circumstances’ in deciding if the consent was voluntary.  The urgency of a particular case is also important, as it will help ascertain whether police officers could have afforded to waste time before the evidence gets hidden or disposed off by the suspect. It is a reflection of lack of comprehensiveness of the Fourth Amendment that such phrases as “reasonable expectation of privacy”, “exigent circumstances”, “probable cause”, etc are used in court trials and during ‘search and seizure’ procedures. (Amsterdam, 1974, p.350)

In the context of the United States, most ‘Search and Seizure’ operations occur as a way of checking illegal trafficking of drugs or suspicious transfer of huge sums of money.  In the post 911 scenario, ‘search and seizure’ procedures are employed as a way of gathering intelligence to prevent possible attacks.  For example, in a hypothetical scenario, the police may have been tipped about an impending terror attack, wherein the bombs are ticking and are hidden in a vehicle.  In this case, it would be imprudent to consider the privacy rights and property rights of the owner of the car before locating and disposing of the bombs.  Another common scenario where Search and Seizure procedure is carried out is to catch tax-evasion.  The police, on a tip-off from the IRS, proceed to conduct a surprise raid on the premises of the suspected tax-evader, so that they could get hold of crucial evidence that stands contrary to the stated claims in tax returns.  ‘Search and Seizure’ procedures come in conflict with rights to privacy and also rights to property.  Hence, as a way of priming citizens toward this law, law professor Gerald Reamey has come up with a guideline (Reamey’s Rule) addressed to citizens.  It states “never, ever, ever put anything in your vehicle that you do not want the police to see”.  This is especially salient because privacy rights are distinctly lower when someone is commuting in a vehicle as opposed to staying at their home or office. (Davies, 1999, p.550)

Search and Seizure operations often open up other ethical conundrums for the parties involved.  For example, when a suspected person does not hold a ‘reasonable expectation of privacy’ to his private property that is usually respected in comparable cases, search operations does not fall under Fourth Amendment provisions, and consequently does not require a warrant.  (Barry, 1998, p.122)

References:

Barry, Donald D., and Howard R. Whitcomb, (1998), The legal foundations of public administration (Lanham, Md: Rowman & Littlefield Publishers), 122.

Search and Seizure, Legal Dictionary, retrieved from <http://legal-dictionary.thefreedictionary.com/Search+and+Seizure> on 9th August, 2011.

Amsterdam, Anthony G. (1974). “Perspectives on the Fourth Amendment”. Minnesota Law Review 58: 349.

Davies, Thomas Y. (1999). “Recovering the Original Fourth Amendment”. Michigan Law Review 98 (3): 547–750.