Aspects of Search and Seizure

Subject: Law
Pages: 6
Words: 1408
Reading time:
6 min
Study level: College


In dealing with crime, there are several approaches which are usually adopted by law enforcing agencies as defined by the supreme law of any country. These laws are not only important in recovering evidence and ultimately catch up with criminals, but also endeavor to protect the rights of the victims and the general public. Violation of such laws is considered to be a crime and those found guilty are charged in accordance with the existing law. Enshrined in the U.S constitution, search and seizure simply denote the methods applied in investigations, tracking of evidence, arrest of suspects and in questioning of witnesses. In this regard, this paper describes several aspects of search and seizure including its background, development of rational and justifications and a personal view of the topic.

Search and Seizures

What is a search? It refers to invasion of someone’s privacy. Before the case of Katz v. U.S in 1967, privacy was mainly defined in the confines of trespass (Oyez, 2011). Since then, the United States has continued to experience rational anticipation of privacy. The implication of this is that the privacy of every citizen has to be protected regardless of their social status, race or gender. However the famous Fourth Amendment does not have provisions to protect all forms of privacy but prohibits unreasonable searches and seizures. On the other hand, a seizure is defined as denial of liberty or enjoyment in exercising power over someone, property or something. In line with this, police are allowed to temporarily seize a person’s property for a time which may vary from one jurisdiction to another. Additionally, seized materials can remain in police custody indefinitely especially when it is being used as evidence in a criminal case. Unlike seizure of property which may take longer, seized persons are always held for a shorter time (Kentucky Justice Cabinet, 2001).

Background of Searches and Seizures

When put together, search and seizures refer to all the methods employed by law enforcers during crime investigation, gathering of evidence, arresting of suspects and questioning of witnesses involved in crime. It can also be used to refer to laws which govern the mentioned methods. These rules are outlined in the Fourth Amendment of the American constitution, designed to offer more strength to sections which are not well defined in the constitution. In addition, every state has its rules, guidelines, procedures, statutes and constitutional provisions that give the basis of implementing these laws (Oyez, 2011). In understanding searches and seizures, the Fourth Amendment offers a core foundation as it defines the amount of protection given by the federal and state government against warranted searches and seizures. Over certain clauses of the amendment, the Supreme Court has continuously advocated for more protection against searches and seizures from the federal in order to safeguard citizens from illegal deprivation of privacy.

Moreover, it is worth noting that the American Revolution was necessary in order to have a system of governance that would obey the rule of law during its operation. Based on this analogy, the United States is not only a nation of men and women but also of laws (Orin, 2011). Within this understanding, all the actions propagated by government officials are always limited by norms, rules and legal principles which constitutes to the legal system of the nation and not by individual will or personal interests. As a result, government officials who violate these rules cease being law enforcers and become law breakers.

The origin of the Fourth Amendment was in response to the experience the United States had gone through during colonial period. This was principally witnessed in tax collection procedures where British magistrates were allowed to give search warrants to tax collectors ones it was suspected that colonists were not acting in accordance with tax regulations (Thomas, 2010). Moreover, the law at that time did not allow magistrates to question the source of the collector’s cause of suspicion but gave general warrants for door-to-door searches in different neighborhoods regardless of time, place and person. Notably, the WRIT of Assistance compelled colonial residents and other peace officers to give a hand during searches. This usually lasted as long as the King or Queen lived, and could be implemented by all British law enforcing officers like custom officers who used this provision to hunt and revoke licenses for smugglers (Orin, 2011).

Due to the inefficiency of the law, there was continuous resistance against general warrants from American colonists. A good example is James Otis who appeared in the Paxton’s case also known as Writ Assistance Case opposing the issuance of general warrants (Mitchell, Clayton & Travis, 2009). He argued that search warrants were only allowed and legal if directed officers were allowed to search particular houses. Otis’ stance has been cited by some authors as the genesis of the controversy between America and the Great Britain.

Endorsed by United States in 1791, the Fourth Amendment opened a window of hope and privacy relief by bringing to an end Writ of Assistance through the creation of a constitution that buffered power enforcement and the U. S citizens. In general, the Fourth Amendment promoted privacy interests for citizens by securing personal and property security. Secondly, it prohibited unauthorized searches and seizures which had been witnessed before (Mitchell, Clayton & Travis, 2009). Lastly, any reasonable warrant was to be supported by an oath as an affirmation by the officer requesting the issuance of such notices. As described below, the Fourth Amendment of the U.S constitution remains a pillar for the implementation and effectiveness of searches and seizures laws.

The Fourth Amendment

The underlying point in the Fourth Amendment of the American constitution is the fact that it prohibits law enforcing officers from carrying out unreasonable searches and seizures. However, it is important to note that it is the 14th Amendment of the constitution that allows the implementation of the 4th Amendment on law enforcement officers and states. Additionally, the amendment not only prohibits “unreasonable” searches but permits these agents and the states to carry out any form of “reasonable” searches as provided by the law. Furthermore, the 14th Amendment has no authority to extend to individuals’ private life (Thomas, 2010).

Application of the 4th Amendment

There are several legal standards which emanate from the 4th Amendment. These standards provide protection of citizens in the following ways: Firstly, the law is operational when a person is stopped by a police officer or any other law enforcing agent while walking on the road or street. Another scenario which demands that the law is applied is during an arrest of a criminal or a suspected criminal. Others include entering a house for search, entering a person’s house to arrest him or her, entering business premises to search for criminal evidence and confiscation of personal property or vehicle under the control of the police. It is important to note that there are countless scenarios which need the application of the law and these cannot be exhausted in this segment of the research (Thomas, 2010). Nevertheless, a law enforcing agent may not seize or search individual property unless the officer is in possession of legitimate arrest and search warrants. Additionally, the officer must have a brief explanation of the “probable case” that the person in question has committed a given crime.

Violation of the 4th Amendment

In cases where an individual’s rights are violated under the 4th Amendment, the law provides that evidence collected as a result a search or seizure conducted under such circumstances cannot be used against the person whose rights are denied. In this regard, an arrest or seizure violates this amendment if there is no probable cause for the action and lack of valid warrants during the exercise (Thomas, 2010).

Personal view and conclusion

From a legal perspective, the 4th Amendment is quite important in protecting the privacy of citizens against any form of illegal and unauthorized search and seizure. In the event that there is probable cause for search, the entire due process has to be followed by acquiring genuine arrest or seizure supporting document. From the above analysis, it can be argued that the 4th Amendment has played a major role in protecting American citizens from unwarranted infringement of privacy and personal property. Although the law was enacted to protect American from general searches which were commonly issued by colonial magistrates, it has equally had positive legal impact in the 21st century, several years after its adoption.


Kentucky Justice Cabinet. (2001). Search and Seizure Case Briefs. Kentucky Justice Cabinet. Web.

Mitchell, P., Clayton, C., & Travis, P. (2009). Search and Seizure, Racial Profiling, and Traffic Stops: A Disparate Impact Framework. Law & Policy, 31 (1), 1-30.

Orin, K. (2011). Fourth Amendment Seizures of Computer Data. Yale Law Journal, 119(4), 700-724.

Oyez. (2011). Katz v. United States. Chicago-Kent College of Law. Web.

Thomas, D. (2010). The Supreme Court giveth and the Supreme Court taketh away: the century of fourth amendment “search and seizure” doctrine. Journal of Criminal Law & Criminology, 100 (3), 933-1041.