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Search and Seizure - Criminal Defense Wiki
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Search and Seizure


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Background

Search and seizure is a legal procedure used in both civil and common law legal systems where law enforcement officials and other relevant authorities conduct search of an individual's property, who they suspect as being involved in the crime, and confiscate evidence they consider as being relevant to the crime .

Cambodia

  • In case of a flagrant offence, judicial police may conduct a search at anytime, after obtaining the authorization from the Royal Prosecutor, which is valid even if the authorization is verbal (art. 91 CCCP)

Search of home

  • A written consent from the occupant of the house is required for a search to be conducted. Where the occupant denies access for search, the President of the Court of First Instance who has territorial jurisdiction may authorize the search and the Prosecutor shall personally lead the search. It cannot be conducted before six o clock in the morning and after six o clock in the evening. (art.113 CCCP)

China

  • The client has the right to reject an unlawful search. If he is not shown a search warrant from before, the search is unlawful. A search may be conducted without a search warrant if an emergency occurs at the time of arrest or detention. Any articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence may be seized, but articles and documents that are irrelevant to the case may not be seized. All seized articles and documents shall be carefully checked by the investigators jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made and duplicated on the spot and shall be signed or sealed by the investigators, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference. (art. 111-115 CPL)

Search of person

  • For the purposes of collecting criminal evidence and tracking down a criminal offender, the investigating personnel may search the person�(art. 109 CPL)

Search of home

  • For the purposes of collecting criminal evidence and tracking down a criminal offender, the investigating personnel may search the residence of the crime suspects and persons who might hide the criminal offender or criminal evidence (art. 109 CPL)

India

  • The officer or other person making an arrest may take from the person arrested any offensive weapons and shall deliver them to the Court or officer to whom the person making the arrest must produce the arrestee (s. 52 Criminal Procedure Code 1973)

Search of person

  • The officer making the arrest may search that person, and put in safe custody all articles, other than necessary wearing apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (s.51 (1) CPC)

Search of home

  • If a police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within any place, the person residing or being in charge it, shall allow the officer free ingress thereto, and afford all reasonable facilities for a search therein. (s.47 CPC)

Kenya

Constitution

  • 76 (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.


Criminal Procedure Code, 2009

  • 26 (1) A police officer, or other person authorized in writing in that behalf by the Commissioner of Police, may stop, search and detain -
    • (c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.
  • 118. Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

Tanzania

Criminal Procedure Act, 1985

  • 25(1) Subject to the provisions of sections 50 and 51 of this Act, any police officer may do any or ail of the following things namely, stop, search and detain:
    • (a) any vessel, boat, aircraft or vehicle in or upon which there is reasonable cause to suspect that there are-
      • (i) any stolen goods;
      • (ii) any things used or intended to be used in the commission of an offence;
      • (iii) without lawful excuse, any offensive weapons, an article of disguise or any article prohibited under any law;
    • (b) any person who is reasonably suspected of having or conveying inany manner any of the articles mentioned in paragraph
  • 38
    • (1) If a police officer in charge of a police station is satisfied that here is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place-
      • (i) anything with respect to which any offence has been committed;
      • (ii) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of any offence;
      • (iii) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing any offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing, or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be.
    • (4) No prosecution resulting from the exercise of powers under this section shall be commenced without the consent of the Director of Public Prosecution.
  • 42
    • (1) A police officer may
      • (a) search a person suspected by him to be carrying anything concerned with an offence, or
      • (b) enter upon any land, or into any premises vessel or vehicle, in which he believes on reasonable grounds that anything connected with an offence is situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be-
        • (i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and
        • (ii) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part.
    • (2) A police officer who believes on reasonable grounds that a person is carrying an offensive weapon or anything connected with an offence may stop that person and seize any such weapon or thing that is found on the person.
    • (3) A police officer who believes on reasonable grounds that an offensive weapon, or anything connected with an offence is being carried in a vessel or vehicle, may stop and seize any such weapon or thing found in the vessel or vehicle.

Uganda

Criminal Procedure Act, 1950

  • 3. Search of place entered by person sought to be arrested.
    • (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person acting under the warrant or such police officer, allow him or her free ingress to the place and afford all reasonable facilities for a search in it.
    • (2) If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer, to enter the place and search in it, and in order to effect an entrance into the place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his or her authority and purpose, and demand of admittance duly made, he or she cannot otherwise obtain admittance.
  • 6. Search of person arrested.
    • (1) Whenever a person is arrested
      • (a) by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or
      • (b) without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail, the police officer making the arrest or, when the arrest is made by a private person, the police officer to whom he or she makes over the person arrested, may search that person and place in safe custody all articles, other than necessary wearing apparel, found upon him or her.
    • (2) Notwithstanding subsection (1), a police officer may search any person who has been arrested and may take possession of anything found on the person which might reasonably be used as evidence in any criminal proceedings.

United States

Constitutional Basis

Fourth Amendment (IV) to the United States Constitution - 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.

This small, yet mighty amendment has been interpreted by courts in many ways. Following a are a few of the key cases in which the U.S. Supreme Court outlined a defendant's Fourth Amendment rights.

  • Draper v. United States - Search and seizure of a person, based on hearsay statements provided by a paid informant who had proved reliable in the past, was based on probable cause and therefore constitutional under the Fourth Amendment.
  • Illinois v. Gates - Probable cause should be based on the totality of the circumstances.
  • Ornelas v. United States - Detectives can draw inferences based on experience in order to have probable cause. An appeals court should give due weight to finding that

Scope of Permissible Search

  • Chimel v. California - Absent exigent circumstances and probable cause, Police may not search home when they are arresting defendant pursuant to an arrest warrant. However, a 'Chimel Search' is permitted on arrestee's person and the immediate area from which he can either destroy evidence or gain access to a weapon.("Grabable Space")

Application Outside U.S.

  • United States v. Verdugo-Orquidez - Fourth Amendment protection against search and seizure only applies to the people and not to the foreign borns.

Arrest Warrant Requirement

  • United States v. Watson - Officer may arrest person without a warrant when they have reasonable ground to believe that a felony has been committed and that the person before them committed it. Officer may make warrantless arrest for the misdemeanor committed in her presence. A crime is committed in the officer's presence if she is aware of it through her senses. The arrest can be made even if incarceration is not part of the crime.
  • Payton v. New York - Absent exigent circumstances police officers may never enter a home to arrest for a dangerous felony unless they have first obtained a warrant.
  • Atwater v. City of Lago Vista - Fourth Amendment does not forbid peace officers for arresting without a warrant for misdemeanors not amounting to or involving breach of the peace.
  • California v. Hodari D. - 1) physical force or 2) the submission of an individual to a showing of authority is required for a personal seizure to take place under the Fourth Amendment. Thus, an individual is not "seized" under the Fourth Amendment when being chased by an officer during flight.
  • Illinois v. McArthur - If Police have probable cause that defendant's home contains evidence of crime or contraband, police may detain defendant temporarily while they obtain a search warrant.

Knock and Announce

  • Wilson v. Arkansas - Common law rule of knock and announce is an element of reasonableness under the Fourth Amendment.
  • Richards v. Wisconsin - - There is no a blanket exception to the knock/announce rule for felony drug investigations. In order to justify a no knock entry, police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances would be dangerous or futile, or would inhibit the investigation of the crime, for example, by the destruction of evidence.
  • United States v. Banks - Although a close call, where officers know evidence may be destroyed, 15-20 seconds is not an unreasonable time to wait after knocking to break down the door.

Vehicles, Drivers, Passengers

  • Chambers v. Maroney - When there would have been a permissible search at the time of arrest based on probable cause the search is still permissible at a later date if the vehicle has been seized.
  • South Dakota v. Opperman - Fruits of routine inventory of automobile legally impounded by police are not unreasonable under the Fourth Amendment.
  • Florida v. White - Fourth Amendment does not require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband.
  • Whren v. United States - Officer's motive in making a seizure cannot invalidate objectively reasonable behavior under the Fourth Amendment.
  • Maryland v. Wilson - Rule which permits officer as a matter of course to order driver of a lawfully stopped car to exit his vehicle, extends to passengers as well.
  • Wyoming v. Houghton - Police officers with probable cause to conduct warrantless search of car for contraband held not to violate fourth amendment by searching passenger's personal belongings in car that are capable of concealing contraband.
  • Knowles v. Iowa - The officer may not conduct a full search of the car for speeding violation which they are going to ticket instead of arrest
  • Ohio v. Robinette
  • New York v. Belton - Police may search passenger compartment and any containers held therein during a search incident to arrest.
  • Thornton v. United States - So long as the arrest was the sort of "recent occupant" of a vehicle such as the arrestee in the instant case, officers could search the vehicle incident to the arrest.

Containers, Clothing, Handbags

  • United States v. Chadwick - A search warrant is required before federal agents may open a locked foot locker which they have lawfully seized at the time of the arrest of its owners, where there is probable cause to believe the footlocker contains contraband.
  • California v. Acevedo - Police may search an automobile and containers within it where they have probable cause to believe contraband or evidence is contained.
  • United States v. Edwards - once a defendant is lawfully arrested and is in custody, the effects in his possession at the place of detention ay be subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing on the one hand and the taking of property for use as evidence on the other.
  • Illinois v. Lafayette - It is reasonable and consistent with the Fourth Amendment for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect.

Consent

  • Stoner v. California - Only the defendant himself may grant permission for an officer to search his hotel room.
  • Bumper v. North Carolina - A search cannot be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant.
  • Schneckloth v. Bustamonte - When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and 14th Amendment requires that it demonstrate that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the totality of the circumstances. Prosecution is not required to demonstrate that the subject knew he could refuse to consent to establish voluntariness.
  • United States v. Matlock - Consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. Proof must be demonstrated by a preponderance of the evidence.
  • Illinois v Rodriguez - Officers need only to reasonably believe that person who consents to search of apartment is common authority. The validity of the search will be based on totality of the circumstances and the reasonable person test.
  • Florida v. Bostick - The test for whether seizure has occured for purposes of the Fourth Amendment is whether, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer's requests or otherwise terminate the encounter.
  • United States v. Randolph - No valid consent when co-occupant states his refusal to permit entry over the consent of his co-occupant.

Border Searches, Plain view, Open Fields, Public Schools, Railroad Employees, Administrative Searches

  • United States v. Flores-Montana -
  • Arizona v. Hiccks - Plain view doctrine says that an office may seize evidence if 1) Officer is lawfully where it is and 2) The officer has probable cause to seize the item. In this case, however, the plain view doctrine was rejected because the police officer picked up an item to see the serial number hidden from plain view.
  • California v. Greenwood - The Fourth Amendment does not prohibit warrantless search and seizure of garbage left for collection outside the curtilage of a home.
  • Oliver v. United States - Individual may not legitimately demand privacy for activities concluded out of doors in fields, except in the area immediately surrounding the home (Curtilage)
  • New Jersey v. TLO - The legality of a search of a student depends on the reasonableness, under all the circumstances of the search. Test has two prongs: 1) whether action was justified at its inception (reasonable grounds for suspecting that student has violated or is violating law or rule of school) 2) was search as conducted was "reasonably related in scope to the circumstances which justified the interference in the first place"
  • Skinner v. Railway Labor Executives' Association - Probable Cause is not required four routine post-accident blood, urine and breath tests when the privacy interests implicated are minimal and the government interest at stake is high.
  • Camara v. Municipal Court - In order to execute an administrative search of a housing premises, inspector requires a warrant.
  • New York v. Burger - Warrantless inspection of property is reasonable where privacy interests of owner are weakened and government interests are concomitantly higher. In order to qualify for this exception you must show: 1) Substantial government interest, 2) Warrantless inspections must be necessary to further regulatory scheme, 3) Statute's inspection program, in regulation and application, must provide a constitutionally adequate substitute for a warrant. (For instance, carefully limited in time, place and scope)

Zimbabwe

  • When searching without a warrant, police officers shall not enter any dwelling without the consent of the occupier (part VI, div B s 54(2) CPEA);
  • The State may seize any article -which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence - which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence - which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence (part VI, div B s (49) (a-c) CPEA)

These articles may only be seized by virtue of a warrant (part VI, div B s (50) CPEA)

  • A police officer may search any person or premises and consequently seize an article without a warrant if: - the person concerned consents to it - if he believes on reasonable grounds that a warrant would have been issued to him or that the delay in obtaining one would prevent the seizure or defeat the object of the search. For more exceptions see (part VI, div B s (51) (1-3)

Search of a person

  • A peace officer or other person arresting any person under this Part may search that person, and shall place in safe custody all articles, other than necessary wearing apparel, found on him (part V, div A, s (41) (2) CPEA)



See Rights of the Accused