Thinking about search and seizure issues is a daily part of life for most law enforcement officers. Arresting a suspect, looking for evidence, making a traffic stop, and seizing evidence are all activities that law enforcement officers engage in on a daily basis and issues of search and seizure are necessarily implicated.

For a law enforcement officer thinking about these issues or engaging in these activities, the guiding principals for your thoughts or actions are contained in the fourth amendment to the United States Constitution. This amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by both or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article 1, Section 15 of the Missouri Constitution has a virtually identical provision and is equally applicable as a guidepost in this area.

A law enforcement officer must understand that the umbrella that he or she operates under when dealing with search or seizure issues is the umbrella of "reasonableness." In that regard, it has been repeatedly held by the U.S. Supreme Court, as well as the federal and state courts, that a search without a warrant is presumed to be invalid under the fourth amendment. In that situation, the burden is upon the government to prove adequate justification for the warrantless search. This can only be done if the state proves that the warrantless search falls within one of the few specifically established and well delineated exceptions to the warrant requirement. If the state fails to meet its burden of proof in this regard, the evidence obtained pursuant to the unreasonable search will not be admissible into evidence.

Therefore, a law enforcement officer should always apply for and obtain a search warrant if possible. As the U.S. Supreme Court has stated, "the police must, whenever practicable, obtain advanced judicial approval of searches and seizures." Perry v. Ohio, 932 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2nd 889 (1968).

When considering the need for a search or arrest warrant, a law enforcement officer should begin by asking themselves three questions:

1. Does the suspect possess a reasonable expectation of privacy?
   
   
2. Is the official action contemplated a "search?" and
   
   
3. Is the official action contemplated a "seizure?"

As a general rule a person has a legitimate expectation of privacy in his person, house, papers and effects according to the federal and state constitutions. The courts have interpreted those terms to include a person's house, apartment, office, personal property, brief cases, luggage, other containers, and the person himself. The courts have also held that a person has no legitimate expectation of privacy in abandoned property, open fields, or items or communications that are in plain view or hearing of the general public where the person has made no efforts to protect his or her own privacy. If a person does have legitimate expectation of privacy and the action contemplated by the law enforcement officer is one that would infringe upon that expectation of privacy, then the contemplated course of action by the law enforcement officer would be a "search."

A "seizure" can take two forms. There can be a "seizure" of property or a "seizure" of a person. If the action contemplated by the officer would cause a meaningful interference with a person's possessory interest in an item of property, the action contemplated would be a "seizure" of property. If the action contemplated by the law enforcement officer is the use of actual force to restrain a suspect, the action contemplated would be a "seizure" of the person. A "seizure" of the person can also occur if the law enforcement officer takes actions that would constitute a "show of authority" thereby causing the person to actually submit to the officer.

The overriding thought for any law enforcement officer that wishes to either "search" or "seize" person or property, should be that the fourth amendment of the United States Constitution requires such "searches" or "seizures" to be reasonable. If a "search" is conducted without a warrant, it will be presumed to be unreasonable and the government runs the risk of not being able to use the evidence at trial. In other words, obtain a warrant if practicable to do so.

Future issues of this newsletter will address the "specifically established and well delineated exceptions to the search warrant requirement." However, when dealing with these exceptions, the first thought of law enforcement officers should be that any search without a warrant will be presumed to be invalid.

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*Mr. Parker is the former prosecuting attorney of Dent County, Missouri and currently serves as Vice-Chair of the Criminal Law Committee in the Missouri House of Representatives. He is a member of the National Association of Criminal Defense Lawyers, Missouri Association of Criminal Defense Lawyers and the Missouri Association of Trial Attorneys.