Search and seizure

• 1. Introduction

  ›

  In New Zealand, search and seizure law has produced a peculiarity that courts themselves have confirmed. A police search can be both entirely lawful and simultaneously unreasonable. Those two findings are not contradictory under the country's legal framework; they belong to separate categories with separate consequences. That gap runs through search and seizure doctrine in countries around the world. The Fourth Amendment of the United States Constitution builds its protections around the concept of unreasonable searches. Italian law enshrines the home as inviolable in its constitution. English common law developed precise Latin writs that authorized specific kinds of seizure long before modern constitutional frameworks existed. How those limits are drawn, and what happens when they are broken, is the question search and seizure law has spent centuries trying to answer.

• 2. Ancient Writs

  ›

  A writ of arrestandis bonis ne dissipentur addressed a practical problem of English law. It allowed officials to seize goods that a court found unlikely to be properly cared for while an ownership dispute was pending. A second writ, the attachiamenta bonorum, gave authorities the power to seize personal property as a means of recovering a debt. Each instrument named a specific purpose and authorized only what that purpose required. Seizures conducted under these writs were bounded by that purpose, not by any general claim of government authority.

  Police in the United Kingdom today carry a range of powers to search people and places without first making an arrest. These stop-and-search powers apply during criminal investigations and operate without a warrant requirement. The specific rules governing those powers differ by jurisdiction. Scotland's stop-and-search rules operate separately from those in England and Wales, one consequence of a country built from several distinct legal systems.

• 3. The Fourth Amendment

  ›

  United States v. Jacobsen gave courts a working definition of the word 'search.' That ruling stated that a search occurs 'when an expectation of privacy that society is prepared to consider reasonable is infringed.' The same case defined seizure as occurring 'where there is some meaningful interference with an individual's possessory interests in that property.' These definitions carry weight because the Fourth Amendment's actual text is brief. Most of the law determining what counts as an unlawful search and seizure comes from court decisions rather than the constitutional text itself. As recently as 2012, the Supreme Court addressed the relationship between privacy and property rights in searches. It ruled that the reasonable expectation of privacy test had been 'added to, but not substituted for, the common-law trespassory test.' Property rights still set a baseline for Fourth Amendment protection. The general rule is that a valid warrant is required before any search can be conducted. Consent is one path around that requirement, though no clear test exists for determining whether consent was genuinely voluntary.

• 4. Exceptions to Warrants

  ›

  Police officers are not legally required to tell a suspect they can refuse a search. Policies on disclosure vary by department. Courts assessing whether consent was voluntary look at the totality of the circumstances rather than any single decisive factor. A third party who has equal control over a property, what courts call common authority, may also consent on the owner's behalf. Courts have also recognized an exigent circumstances exception for situations where officers must act quickly. This covers three distinct scenarios: evidence in imminent danger of removal or destruction, a continuing danger, or the presence of people who may need immediate assistance. Police in hot pursuit of a fleeing felon may follow a suspect into a residence. Any evidence visible in plain view at that point may be seized. Certain limited searches are also permitted during an investigatory stop or incident to an arrest; courts sometimes call these refined searches.

  Information shared with a third party holds no reasonable expectation of privacy under Fourth Amendment doctrine. Writing on the outside of an envelope left for delivery carries no such protection. Garbage placed outside the curtilage of a home is similarly unprotected. Motor vehicles fall into a related category of reduced privacy. Coolidge v. New Hampshire placed a limit on that reduction, with a ruling that 'the word automobile is not a talisman in whose presence the Fourth Amendment fades away and disappears.' State constitutions add another dimension to this framework. They cannot reduce protections guaranteed by the federal Constitution, but they can extend them. A search found reasonable under federal standards might still be unlawful under the law of a particular state. When exceptions do not apply, courts examine four specific doctrines to decide whether a search stood on constitutional ground.

• 5. Doctrines and Remedies

  ›

  Reasonableness, probable cause, judicial authority, and particularity are the four tests a court uses when deciding whether a search violated constitutional limits. Only searches meeting all four of those requirements are likely to survive a legal challenge. Police judgment before or during a search typically supplies the factors that determine reasonableness. Probable cause requires an acceptable degree of justified suspicion. Particularity is drawn directly from the constitutional text, which specifies that warrants must describe the place to be searched and the things to be seized. Judicial oversight, through a judge or magistrate, governs whether a warrant is granted or denied before any search takes place.

  The exclusionary rule is the primary remedy when a search violates constitutional standards. Evidence obtained through an illegal search cannot be used against the defendant at trial. Narrow exceptions apply. Officers who relied on a warrant they believed was valid, but which later proved flawed, may still see that evidence admitted. New Zealand's Bill of Rights Act 1990 enshrined a similar protection in national legislation, but the same act undercut it.

• 6. Beyond the United States

  ›

  Section 21 of New Zealand's Bill of Rights Act 1990 guarantees the right to be free from unreasonable search or seizure. Its protection extends to 'the person, property, or correspondence or otherwise.' Section 4 of the same act denies the Bill of Rights any supremacy over other legislation. Courts have drawn a firm line between unreasonableness and unlawfulness, treating them as separate legal categories. The state is therefore able to exercise sweeping search and seizure powers against private individuals, and courts have routinely upheld that authority. The only remedy for someone subjected to an unreasonable search is to seek exclusion of evidence under Evidence Act procedures. Where the search yields no evidence at all, no statutory remedy exists. Civil damages have been awarded only rarely, and typically only to those who can afford to bring a lawsuit.

  Article 14 of Italy's constitution limits home inspections, searches, and seizures to cases that comply with measures designed to safeguard personal liberty. Controls for public health, safety, or economic and fiscal purposes are each regulated by their own appropriate laws. Corporate entities face a sharply different situation: constitutional protections designed for private individuals do not automatically extend to them.

• 7. Corporate and Administrative Searches

  ›

  Justice Holmes drew a significant line in Federal Trade Commission v. American Tobacco Co. The Federal Trade Commission had been granted broad subpoena power to access company documents. Holmes ruled that power did not include the right to a general 'fishing expedition' into private papers. Such a search, he wrote, would go against 'the spirit and the letter' of the Fourth Amendment.

  The 1946 case Oklahoma Press Pub. Co. v. Walling drew a further distinction between two categories of corporate inquiry. Courts there separated what they called a 'figurative or constructive search,' involving requests for records, from an actual physical search and seizure. An actual search requires a warrant based on probable cause. Constructive searches remain constrained by the Fourth Amendment. But when the records in question belong to a corporation rather than a private individual, courts have held that Fourth Amendment protections do not apply. The reasoning is that constitutional safeguards designed for private individuals were not created with corporations in mind. The distinction Oklahoma Press drew in 1946 between requesting records and physically searching premises has remained active in administrative law ever since.