What is a Search or Seizure

What is a “Search” or “Seizure”:

The first step of determining whether your 4^th Amendment rights have been violated is to determine whether a “search” or “seizure” has even occurred. This decision is heavily dependent on the specific facts of your case. 

Searches:

A “search” occurs whenever an officer or government official inspects or examines a person, place, or thing in a manner that uses some measure of force or intrusion and exposes information that would be closed from public view.¹ However, for a search within the meaning of the 4^th Amendment to occur, the intrusion must be into an area where a person has a “reasonable expectation of privacy.”² To determine whether a person has a “reasonable expectation of privacy” in the place searched, courts ask (1) whether the individual had an actual subjective expectation of privacy in the place searched, and (2) whether society is willing to recognize that subjective expectation of privacy as reasonable.³ 

Some examples of situations that courts find to be a “search” within the meaning of the 4^th Amendment are entry into a home, motel room, or other residence;⁴ tracking a person’s cell phone to locate them in real time; ⁵demanding that a person show the officer a concealed object;⁶ and requiring a person to perform a breathalyzer test.⁷ 

Seizures:

A seizure is the act of taking custody of evidence or contraband.⁸ Additionally, a seizure can occur when someone is detained during a police-citizen encounter. 

There are three-levels of police-citizen encounters. The first is what courts refer to as a “consensual encounter.” During a consensual encounter, a person can refuse to comply with the officer’s request and ignore them. A consensual counter is not a “seizure” within the meaning of the 4^th Amendment.⁹ 

The second level is an “investigatory stop.” During an investigatory stop, an officer can detain a person for a short period of time to investigate whether they have committed, is committing, or is going to commit a crime. An officer must have a “well-founded, articulable suspicion of criminal activity” that is more than just a “mere suspicion” to justify an investigatory stop.¹⁰ If the officer does not have a reasonable suspicion, your rights are violated. 

The third level is an arrest. To justify an arrest an officer must have probable cause to believe that a crime has been or is being committed.¹¹ Florida’s Supreme Court has stated that probable cause is “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in belief that the named suspect is guilty of the charged offense.”¹² 

A consensual encounter is not a seizure while investigatory stops and arrests are. Therefore, a consensual encounter cannot violate your 4^th Amendment rights, while unjustified investigatory stops and arrests can. Determining whether an encounter is a seizure or simply a consensual encounter depends on the specific facts of each case. 

However, courts have created a framework for analyzing whether an encounter is a seizure or a consensual encounter. During a consensual encounter “the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries.”¹³ A seizure happens “if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.”¹⁴ 

If an officer hinders your ability to end the encounter or leave, you have been seized. If the officer is not justified by reasonable suspicion and/or probable cause when he or she hinders your freedom of movement, your 4^th Amendment rights have been violated. 

If you believe that your 4^th Amendment rights have been violated by law enforcement, contact Maroni Law as soon as possible so that we can begin preparing your defense and fighting for you.

1. State v. Ashby, 245 So. 2d 225, 227 (Fla. 1977). ↩︎
2. Katz v. United States, 389 U.S. 347, 351 (1967). ↩︎
3. Tracy v. State, 152 So. 3d 504, 512 (Fla. 2014)(citing California v. Ciraolo, 476 U.S. 207, 211 (1986)). ↩︎
4. Maryland v. King, 133 S. Ct. 1958 (2013). ↩︎
5. Tracey v. State, 152 So. 3d 504 (Fla. 2014). ↩︎
6. Williams v. State, 564 So. 2d 593 (Fla. 2d DCA 1990) ↩︎
7. Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994). ↩︎
8. State v. Ashby, 245 So. 2d 225, 227 (Fla. 1977). ↩︎
9. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). ↩︎
10. Id.  ↩︎
11. Id. ↩︎
12. Johnson v. State, 660 So. 2d 648, 654 (Fla. 1995). ↩︎
13. Id. ↩︎
14. Id. ↩︎