Criminal Law

Search and Seizure: The Need for Government Action

The Fourth Amendment to the US Constitution protects you against unreasonable searches and seizures. Generally, this means that your property can't be searched and seized unless there's a good reason for it, such as strong evidence that you're carrying illegal items or "contraband" in your pockets or you're hiding evidence of a crime in your home. Also, a judge usually has to issue a warrant to search a person or place and seize evidence of a crime or illegal items. Although there are some exceptions to this "warrant requirement," a search that's made without a warrant is unreasonable and so violates the Fourth Amendment.

What does that mean? Essentially, any evidence that's obtained by a violation of your Fourth Amendment rights can't be used as proof that you committed a crime. However, not every search and seizure falls under the Fourth Amendment. Government or state action is needed before the Fourth Amendment applies to a particular search and seizure.

"Private" Searches and Seizures

The Fourth Amendment only applies when a search or seizure is made by a government agent or official. State and local police officers, agents from the Federal Bureau of Investigation, and Border Patrol Agents are good examples. In other words, searches and seizures made by private citizens aren't covered by the Fourth Amendment. Wiretaps and other electronic surveillance methods, and searches and seizures of your home or personal belongings, if done by private persons, such as a private investigator or your spouse, don't fall under the Fourth Amendment. So, any incriminating evidence that's obtained in such situations may be used against you in court.

For example, say you're walking through a mall carrying a backpack. A private security guard who's employed by the mall gets information from several retailers that someone fitting your description has been shoplifting. The guard stops you, grabs your back pack, and searches it, all without your permission. The guard doesn't find any stolen merchandise, but he does find some marijuana. He calls the local police, and you're arrested and later charged with drug possession. If the case goes to trial, the state may use the marijuana as evidence against you. While the search and seizure may have been unlawful if a state or local police officer had done it, the security guard is not a state or federal actor or agent, and so the Fourth Amendment doesn't apply.

Private Person Working for the Government

Despite the general rule that the Fourth Amendment doesn't apply to private parties, the Fourth Amendment does apply to a "private" search or seizure if the person making it is an "instrument or agent" of the state. In such a case, the person's actions are "state actions" under the Fourth Amendment. For example, a private citizen who agrees to wear a "wire" and record conversations with a criminal suspect is a state actor. So, the recording of the conversations and any search that's made of the suspect's person or property based upon evidence obtained from those recordings have to satisfy the Fourth Amendment's protection against unreasonable searches and seizures.

Whether a private party is in fact an agent or instrument of the state or government depends on government's participation in the private party's activities. The courts use specific tests for determining when a search is truly private or when it's a government action is disguise. However, the facts and circumstances of the specific case are critical to the determination of whether a search was private or not.

Some of the biggest factors the courts look at when determining whether a search is private or constitutes state action include:

  • Government knowledge and acquiescence in the search, that is, agents are aware of the proposed search or seizure beforehand and allow it to happen
  • The motive of the person conducting the search. For example, a bounty hunter who seizes a wanted suspect and searches his belongings isn't a state actor because the bounty hunter's actions were for his own gain and benefit rather than an effort to assist law enforcement
  • When the government got involved in the case. In other words, if the government is in the middle of an investigation when it contacts or enlists the aid of a private person, a search or seizure by that person will likely be found to be state action
  • The extent of government's participation in the search, such as when law enforcement agents ask someone to conduct a search or give him specific instructions on how to make the search

Questions for Your Attorney

  • Does the Fourth Amendment apply to search and seizure that was made by an off-duty city police officer who was moonlighting as a security guard at store?
  • Does the Fourth Amendment apply when a hotel employee asks a deputy sheriff to stand by him while the employee searched my luggage because he thought I was transporting drugs?
  • My girlfriend took the hard drive from my computer and gave it to the police after they told her that I was being investigated for running an illegal gambling ring from my computer and that she'd be arrested too because she lives with me. Was this legal?
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