Fourth Amendment: Search and Seizure
A step by step process to determining whether a search and seizure was lawful.
The Fourth Amendment: Steps One and Two of the AnalysisUS Constitution Fourth Amendment: “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.”
A Fourth Amendment analysis is a step by step process:
The first step in a search and seizure inquiry is to determine whether there was a government actor, because Article 1, section 9, and the Fourth Amendment only limits government action.
Ex: your neighbor, a mechanic, forcing themselves into your home to look for
their lost dog is not an unconstitutional search and seizure, because they are
not “government actors.”
The second step is whether the police conduct at issue was a search or a seizure because if the police conduct at issue was not a search or a seizure, the constitutional protection does not apply.
Was it a search?
Article I, section 9, protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure.” The Article 1, section 9, search analysis involves one basic question: Did the government actor invade a general right of privacy? “A ‘search’ occurs when a person’s privacy interests are invaded.”
Or, was it a seizure?
“If the intrusions are...‘seizures,’ they require probable cause and a search warrant or separate justification under one of the few, carefully circumscribed exceptions to the warrant requirement. Not all government intrusions, however, trigger Article I, section 9, protections.”
Whether a seizure occurred under Article 1, section 9, is a fact-specific inquiry.
A seizure of the person occurs when “there is a significant interference with an individual’s liberty of movement”
SEIZURE OF PROPERTY
“A seizure of property occurs when there is a significant interference with a person’s possessory or ownership interests in property” by the government.
The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person’s possessory interest in that ‘effect. (State v. Owens)
Property may also be “seized” by show of authority without physical force, and the test
is what an objectively reasonable person would believe under the circumstances, and whether the property has been seized necessarily involves a fact-specific inquiry. (State v. Juarez-Godinez)
SEIZURE OF PERSON
A person is “seized” within meaning of Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained. The test is whether in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, and as long as person to whom questions are put remains free to disregard questions and walk away, there has been no intrusion upon person’s liberty or privacy as would under the Constitution req
The Fourth Amendment: Steps Three and Four of the AnalysisSTEP THREE: DID SOMEONE CONSENT?
Was Consent Given Voluntarily?
Was the Consent the Product of an Illegal Stop? Did a Third-Party Consent to the Search?
Did Officers Exceed the Scope of Consent?
STEP FOUR: DOES AN EXCEPTION APPLY?
Inventory - Was the exercise of custody lawful, and did officers thereafter follow a narrowly tailored policy promulgated by a politically accountable agency that served to limit officer discretion?
Emergency Aid - Was the officer’s search motivated by a good-faith and reasonable belief that a threat to human safety existed and that the intrusion would serve to alleviate that threat?
Exigent Circumstances - Did the police have probable cause and face circumstances that required them to act swiftly to prevent serious violence, escape or the destruction of evidence?
Search Incident to Arrest - Were the actions reasonably calculated in time, place and scope to protect officer safety, prevent the destruction of evidence, or discover evidence
relevant to the arrest?
Officer Safety—Did an an officer’s lawful encounter with a citizen give rise to a reasonable suspicion that the citizen poses an immediate threat of serious physical injury to the officer or others?