What is Legal in Search and Seizure Law and Drug Operations

      The term search means; the invasion of a person's privacy for the purpose of collecting evidence for a criminal proceeding. It not only refers to physical locations such as a residence, place of business or motor vehicle, and includes the search of one's clothing or body.

Seizure, refers to the actual confiscation of property or evidence from a person's possession, and usually occurs when a law enforcement officer interferes with a person's possessory interests in some meaningful manner. Seizure is not limited to property; people can be the subject of a seizure too. When the police place someone in custody or curtail their freedom in some other way.

     All searches and seizures conducted by the police are subject to the provisions of the Fourth Amendment which requires the existence of probable cause or in limited circumstances reasonable suspicion, before can be conducted. At most times, this determination must be made by a judge who reviews the evidence and determines whether issuance of a search warrant would be reasonable under any given set of circumstances. Most police officers are trained in the legal aspects of conducting searches and applying for warrants, which give the police permission to conduct a search or seizure. While strict interpretation of the Fourth Amendment would not allow any search or seizure without the benefit of a warrant, the courts have recognized many situations that are considered exceptions to the warrant requirement. These exceptions allow police officers to conduct limited searches without the benefit of a warrant, but require that the searches conform to particular circumstances and be based on probable cause of reasonable suspicion that a crime has been or is being committed. These exceptions include:

  1. Searches incident to arrest.
  2. Searches with consent.
  3. Searches based on exigent circumstances.
  4. Stop and frisk.
  5. Searches of automobiles.
  6. Search and seizure of items in plain view or open fields.
  7. Searches in correctional institutions.
  8. Police protective sweeps.

     The exceptions to the search warrant requirement of the Fourth Amendment limit both the circumstances in which a lawful search can be conducted and limit the scope or invasiveness of the search. For example, searches justified under the stop and frisk exception would normally be limited to weapons searches and would not allow police officers to check the contents of a suspect's pockets for drugs or other contraband. Similarly, most of these exceptions could not be used to justify the use of an intrusive body cavity search. Which in most people's minds I'm sure is a good thing. It is also important to recognize that the Supreme Court's interpretation of the Fourth Amendment is not dependent on the officer's intentions or the reason for the search. The Supreme Court has instructed that "the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the Amendment applies. What matters is the intrusion on the people's security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, and effect an eviction by the police, or on a whim, for no reason at all." (Soldal v. Cook County, Illinois, 1992, p. 546)

     In the context of drug operations, particularly drug raids, most situations require that police officers first secure a warrant, issued by a judge, before they conduct a drug search. Securing a warrant provides officers with some insulation from liability. However, a warrant does not bar civil liability and that officers must use car in obtaining drug search warrants.

Information is for educational and informational purposes only and is not be interpreted as financial or legal advice. This does not represent a recommendation to buy, sell, or hold any security. Please consult your financial advisor.