Difference between revisions of "Search and Seizure"

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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 .
 
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 .
  
== Search and Seizure Examples ==
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=Cambodia=
 
 
===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)
 
* 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)
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* 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)
 
* 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===
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==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)
 
* 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)
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* 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)
 
* 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===
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==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)
 
* 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)
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* 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)
 
* 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===
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==Kenya==
  
 
Constitution
 
Constitution
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*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.
 
*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===
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==Tanzania==
  
 
Criminal Procedure Act, 1985
 
Criminal Procedure Act, 1985
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**(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.
 
**(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===
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==Uganda==
  
 
Criminal Procedure Act, 1950
 
Criminal Procedure Act, 1950
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**(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.
 
**(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===
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==United States==
  
 
'''Fourth Amendment (IV) to the United States Constitution''' -  
 
'''Fourth Amendment (IV) to the United States Constitution''' -  
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*Illinois v. Gates
 
*Illinois v. Gates
 
*Ornelas v. United States
 
*Ornelas v. United States
'''Scope of Permissible Search'''
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===Scope of Permissible Search===
 
*Chimel v. California
 
*Chimel v. California
 
*Maryland v. Buie
 
*Maryland v. Buie
'''Application Outside U.S.'''
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===Application Outside U.S.===
 
*United States v. Verdugo-Orquidez
 
*United States v. Verdugo-Orquidez
'''Arrest Warrant Requirement'''
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===Arrest Warrant Requirement===
 
*United States v. Watson
 
*United States v. Watson
 
*Payton v. New York
 
*Payton v. New York
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*California v. Hodari D.
 
*California v. Hodari D.
 
*Illinois v. McArthur
 
*Illinois v. McArthur
'''Knock and Announce'''
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===Knock and Announce===
 
*Wilson v. Arkansas
 
*Wilson v. Arkansas
 
*Richards v. Wisconsin
 
*Richards v. Wisconsin
 
*United States v. Banks
 
*United States v. Banks
'''Vehicles, Drivers, Passengers'''
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===Vehicles, Drivers, Passengers===
 
*Chambers v. Maroney
 
*Chambers v. Maroney
 
*South Dakota v. opperman
 
*South Dakota v. opperman
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*Ohio v. Robinette
 
*Ohio v. Robinette
 
*Thornton v. United States
 
*Thornton v. United States
'''Containers, Clothing, Handbags'''
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===Containers, Clothing, Handbags===
 
*United States v. Chadwick
 
*United States v. Chadwick
 
*California v. Acevedo
 
*California v. Acevedo
 
*United States v. Edwards
 
*United States v. Edwards
 
*Illinois v. Lafayette
 
*Illinois v. Lafayette
'''Consent'''
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===Consent===
 
*'''Stoner v. California''' - Only the defendant himself may grant permission for an officer to search his hotel room.
 
*'''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.
 
*'''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.
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*'''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.
 
*'''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.  
 
*'''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'''
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===Border Searches, Plain view, Open Fields, Public Schools, Railroad Employees, Administrative Searches===
 
*'''United States v. Flores-Montana''' -  
 
*'''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.
 
*'''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.
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*'''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)
 
*'''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===
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==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);
 
* 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);

Revision as of 17:43, 17 July 2010