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Unreasonable Searches and Seizures

The Fourth Amendment is the most litigated Amendment in the federal courts. Much of the litigation comes from disputes regarding the prohibition against unreasonable searches and seizures. The Amendment provides in pertinent part that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

The primary terms here are “search” and “seizure,” so each will be discussed in turn.

As for “unreasonable searches,” the Supreme Court has stated that the Fourth Amendment generally protects against searches where an individual has a (1) subjective manifestation of privacy and that (2) privacy expectation is objectively reasonable. In other words, an individual will generally have to take affirmative steps to ensure that something is private, and the privacy is one that society finds reasonable. As you can tell, this is very hazy and much of what is or is not objectively reasonable has been developed by case law. For instance, the smell of one’s luggage, paint on the outside of a car, and account records held by a bank have been found to carry no reasonable expectation of privacy — and thus are not protected by the Fourth Amendment.

Moreover, I find that many people believe that warrants are always required for searches. This is not the case. While in some cases will almost always be required (i.e., searches of homes), there are several exceptions to the warrant requirement.

And want about a “seizure”? A seizure is an intentional act by a government official or police officer where a reasonable person in like circumstances would not feel free to leave. It is, then, almost exclusively subjective. The person usually need only feel that his or her’s freedom of movement and liberty is being restricted. Property seizures, furthermore, occur when there is a meaningful interference with an individual’s property. Whether or not there has been a “meaningful interference” usually depends on the nature of the property.

Given the vast amount of gray area, and the seemingly innumerable amount of federal cases on the subject, it’s not a good idea to pursue a 4th Amendment claim pro se (i.e., unrepresented by an attorney).

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