WHAT IS AN UNCONSTITUTIONAL SEARCH OR SEIZURE?

“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.”                                                              Amendment  IV, U.S. Constitution.

 

What appears above is the language of the 4th Amendment to the United States Constitution.   All disputes about whether a particular search or seizure of a particular person, place or thing was constitutional or unconstitutional are settled through judicial interpretation of this one sentence.  If a search is conducted pursuant to a search warrant, the 4th Amendment tells us that the warrant must be based on probable cause, supported by oath or affirmation, and that the place to be searched and persons or items to be seized must be described with particularity.  Otherwise, all the 4th Amendment tells us is that the people are not to be subjected to “unreasonable searches or seizures.”  But in what circumstances must a search or seizure be conducted under a search warrant or arrest warrant in order to be reasonable?  If there are circumstances in which a search or arrest warrant is not required, must all searches and seizures conducted without a warrant nevertheless be supported by probable cause?   If not, what justification must there be for a warrantless search or seizure in order for it to be reasonable?   Does the answer to that question depend on the scope of the search or seizure or the purpose for which it is conducted?  If a search is unreasonable, what should be the remedy be for the wrong; that is, should the wronged person be left to seek monetary damages through a civil action, or should the government be prevented from using its ill gotten gains?  If the evidence should be suppressed from use by the government, should evidence that was gathered derivatively, as a result of the tainted primary evidence, also be suppressed, and if so, should it matter how remote or tenuous the connection is between the two?   If a search or seizure is unreasonable, who is allowed to complain about it, to seek the benefits of suppression?

 

All of the above questions and more are addressed in thousands and thousands of cases, based on hundreds of thousands of factual twists and turns, with more cases decided every day in state and federal courts.  This is why it is not always easy to give or get a definitive answer  as to whether a particular search or seizure was constitutional or unconstitutional.   That so much legal wrangling has taken place over so few words, centered around the word “unreasonable,” illustrates why lawyers will have plenty to argue about until the end of time.

 

Ed Folsom, Biddeford, Saco, Portland, Maine, Criminal Defense, OUI, DUI Attorney, Cumberland County, York County.

 



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